Clarence Thomas and the Lost Constitution

Clarence Thomas and the Lost Constitution

September 2019 • Volume 48, Number 9 • Myron Magnet

Myron Magnet
Author, Clarence Thomas and the Lost Constitution

Myron Magnet is editor-at-large of City Journal, where he served as editor from 1994 to 2007. He earned an M.A. from Cambridge University and a Ph.D. from Columbia University, where he also taught for several years. A 2008 recipient of the National Humanities Medal, he has written for numerous publications, including Commentary, The Wall Street Journal, and The New York Times. He is the author of several books, including The Founders at Home: The Building of America, 1735-1817 and, most recently, Clarence Thomas and the Lost Constitution.

The following is adapted from a speech delivered on September 17, 2019, at Hillsdale College’s Constitution Day Celebration in Washington, D.C.

Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.

What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.

Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.

During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.

The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.

To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is.

This is the constitutional deformation that Justice Thomas, an Old Constitutionalist in capital letters, has striven to repair. If the Framers had wanted a constitution that evolved by judicial ruling, Thomas says, they could have stuck with the unwritten British constitution that governed the American colonists in just that way for 150 years before the Revolution. But Americans chose a written constitution, whose meaning, as the Framers and the state ratifying conventions understood it, does not change—and whose purpose remains, as the Preamble states, to “secure the Blessings of Liberty to ourselves and our Posterity.”

In Thomas’s view, there is no nobler or more just purpose for any government. If the Framers failed to realize that ideal fully because of slavery, the Civil War amendments proved that their design was, in Thomas’s word, “perfectible.” Similarly, if later developments fell away from that ideal, it is still perfectible, and Thomas takes it as his job—his calling, he says—to perfect it. And that can mean that where earlier Supreme Court decisions have deviated from what the document and its amendments say, it is the duty of today’s justices to overrule them. Consequently, while the hallowed doctrine of stare decisis—the rule that judges are bound to respect precedent—certainly applies to the lower courts, Supreme Court justices owe fidelity to the Constitution alone, and if their predecessors have construed it erroneously, today’s justices must say so and overturn their decisions.

To contemporary lawyers and law professors, this idea of annulling so-called settled law is shockingly radical. It explains why most of Thomas’s opinions are either dissents from the Court’s ruling or concurrences in the Court’s ruling but not its reasoning, often because Thomas rejects the precedent on which the majority relies. Content with frequently being a minority of one, he points to Justice John Marshall Harlan’s lone dissent in the 1896 Plessy v. Ferguson case as his model. The majority held in Plessy that separate but equal facilities for blacks in public accommodation were constitutional. Harlan countered: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. . . . The law regards man as man.” “Do we quote from the majority or the dissent?” Thomas asks. Like Harlan, he is drawing a map for future justices, and he will let history judge his achievement.

***

Thomas’s opinion in the 2010 McDonald v. Chicago case takes us back to the first of three acts in the drama of constitutional subversion. In that opinion, Thomas agrees with the majority that Chicago’s ban on owning handguns violates the Fourteenth Amendment, but disagrees on why. The Fourteenth Amendment deems everybody born or naturalized in this country, and subject to its jurisdiction, to be a citizen of the United States and of the state where he lives, and declares that no state may “abridge the privileges or immunities of citizens of the United States.” What the drafters meant by that language was that former slaves were full American citizens, and that no state could interfere with their federally-protected rights—including, said one senator in framing the amendment, “the personal rights guaranteed and secured by the first eight amendments of the Constitution.” The rights guaranteed by the Bill of Rights, observed a typical commentator of the time, “which had been construed to apply only to the national government, are thus imposed upon the States.” And the feds, the amendment’s chief draftsman declared, have the power to enforce them.

Perfectly clear, right? Well, no—not once the Supreme Court got hold of it. As Thomas recounts in McDonald, the Court’s first pronouncement on the Fourteenth Amendment came in its 1873 Slaughter-House Cases ruling, which drew a distinction between the privileges and immunities conferred by state citizenship and those conferred by national citizenship. The latter, the Court held, include only such things as the right to travel on interstate waterways and not to be subject to bills of attainder. All the rights having to do with life, liberty, and property attach only to state citizenship, not national, so they aren’t protected by the Fourteenth Amendment. One of the four dissenting justices correctly noted that the majority opinion “turns . . . what was meant for bread into a stone.”

The day before the Court handed down its bizarre Slaughter-House decision, the worst atrocity of the terrorist campaign in the South to nullify Reconstruction had occurred. Black Louisianans, aiming to safeguard Republican victories in contentious recent elections, occupied the courthouse in the county-seat hamlet of Colfax. Mounted White Liners—an anti-black militia like the KKK—massed in the surrounding woods, prompting more frightened blacks to crowd into the courthouse. On Easter Sunday, the White Liners set the courthouse ablaze and shot those who ran out the door or jumped out of the windows. That evening, they shot the captive survivors.

No Louisiana district attorney was going to charge the murderers, so a federal prosecutor convicted three of them of violating a congressional enforcement act that made it a crime to conspire to deprive someone of the privileges or immunities of U.S. citizenship. But in its 1876 Cruikshank decision, the Supreme Court overturned the convictions. The rights enumerated in the Bill of Rights aren’t the privileges or immunities conferred by U.S. citizenship, the Court held, citing Slaughter-House as precedent. They come from the Creator, and the first eight amendments merely forbid Congress from abridging them. Moreover, the murderers were individuals, and the Fourteenth Amendment refers only to states. That was the end of the Fourteenth Amendment’s Privileges or Immunities Clause.

In time, the Court rigged a workaround. The Fourteenth Amendment forbids states from taking away a citizen’s life, liberty, or property without “due process of law”—which really means, the Supreme Court asserted out of the blue during the New Deal, that some liberties are so basic that no state can invade them, a doctrine dubbed “substantive due process.” Thomas calls this smoke and mirrors in his McDonald opinion. Even worse, the “substantive due process” doctrine allows judges to conjure up imaginary rights out of thin air, making law instead of interpreting the Constitution. Why, Thomas asks, is the Court treating Slaughter-House and Cruikshank as sacrosanct? It doesn’t hesitate to overturn laws passed by Congress and signed by the president when it thinks the Constitution doesn’t allow them. Why should it treat the errors of previous Courts with any more respect? Yes, the Chicago handgun ban is unconstitutional, Thomas writes. But that’s because it abridges citizens’ Second Amendment right to keep and bear arms as guaranteed by the Privileges or Immunities Clause of the Fourteenth Amendment. Why not junk the mumbo-jumbo of “substantive due process,” on which the majority of his colleagues are relying in this case, and return to the original text?

Act Two of the great constitutional subversion stars Franklin Roosevelt, who wrongly diagnosed the cause of the Great Depression as a crisis of overproduction and thus wanted to seize control of the whole U.S. economy to regulate output. For years the Court resisted this power-grab, but it buckled under Roosevelt’s threat to enlarge its membership and pack it with judges who would go along. The “Court’s dramatic departure in the 1930s from a century and a half of precedent,” Thomas says, was a fatal “wrong turn” that marks the start of illegitimate judicial constitution-making.

In his 2005 dissent in Gonzales v. Raich, Thomas cites the New Deal Court’s zaniest decision: Wickard v. Filburn, a 1942 ruling in which the Court abjectly capitulated to the federal government’s takeover of the economy under the pretext of the Constitution’s commerce power. Wickard held that Congress’s authority to regulate interstate commerce could even forbid a farmer from growing grain only to feed to his own livestock. In his Gonzales dissent, Thomas hints that the Court should overturn the whole tangle of Commerce Clause cases related to Wickard.

The majority ruling in Gonzales held that federal agents had the authority, under the interstate commerce power—and despite California’s legalization of medical marijuana—to punish two ill Californians who grew and used pot to control their pain. Interstate commerce? Hardly, Thomas demurs. Like farmer Filburn’s grain, the pot was never bought or sold, never crossed state lines, and did not affect any national market. “Not only does this case not concern commerce,” Thomas writes, “it doesn’t even concern economic activity.” Next thing you know, the feds will be raiding potluck suppers.

Thomas understands that the New Deal gave rise to an even more powerful device for constitutional demolition than the engorged commerce power—a whole set of administrative agencies like the NLRB and the SEC. The Supreme Court, Thomas grumbled in the first of a series of 2015 administrative state opinions, has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”

For starters, the Constitution vests all legislative powers in Congress, which means that they cannot be delegated elsewhere. As the Framers’ tutelary philosopher John Locke wrote, the legislature can make laws but it cannot make legislators—which is what Congress does when it invests bureaucrats with the power to make rules that bind citizens. Nor can the courts delegate judicial power to bureaucrats, as the Supreme Court began doing in a World War II case when it ruled that courts must defer to agencies’ interpretations of their own regulations. The Court’s rationale was that agencies have technical expertise that judges lack. That’s not the relevant issue, Thomas contends: “The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means.” And who better to interpret the meaning of words, Thomas asks in Perez v. Mortgage Bankers Association, than a judge?

Worsening this problem, Thomas argues in Michigan v. EPA, is the deference doctrine that the Court hatched in Chevron v. Natural Resources Defense Council in 1984. This doctrine requires courts to assume that Congress intended that any ambiguity it left in a statute under which an agency operates should be resolved by the agency, not by the courts. Consequently, Thomas exasperatedly observes, not only do we have bureaucrats making rules like a legislature and interpreting them like a judge, but also the interpretations amount to a further lawmaking power, with no checks or balances whatever.

A not untypical result of all this administrative might, to cite an example recently in the news, was an EPA ruling that a Montana rancher polluted the navigable waterways of the United States by digging two ponds to be filled by a tiny trickle on his land, 40 miles from anything resembling a navigable waterway. For providing reservoirs to fight potential forest fires, the rancher was fined $130,000 and sentenced to 18 months in prison. (The rancher served his time in prison but continued his legal fight until he died at age 80. A month after his death, the Supreme Court vacated the ruling against him. The Trump administration recently revoked the regulation under which he was convicted.)

In a virtuoso dissent last year in Carpenter v. U.S., Thomas takes on the third and last act of the Court’s attack on the Framers’ Constitution—the license with which the Court presumes to make up law out of whole cloth, with no prompting from either Congress or the president. The best recognized example of this is the 1973 Roe v. Wade abortion decision. Carpenter is less incendiary, but it is deliciously instructive.

A career armed robber, Carpenter claimed that police use of cell phone location data in convicting him violated his Fourth Amendment protection against unreasonable search and seizure. The Framers, of course, had no cell phones. But, Thomas notes, Chief Justice William Howard Taft had shown as early as 1928 how to adapt to new circumstances, in a case concerning a telephone wiretap. The phone lines were outside the convicted bootleggers’ premises, and conversations aren’t papers, so federal agents had not invaded their Fourth Amendment-protected “persons, houses, papers, [or] effects.” Thus, Taft held, no Fourth Amendment-banned search had occurred.

But in a 1967 wiretapping case, the Supreme Court decreed that what the Fourth Amendment really protects is a person’s “reasonable expectation of privacy.” With this “reasonable expectation,” on which the Carpenter majority rests, Thomas has a field day. Dictionaries from 1770 to 1828 define a “search” as a looking into suspected places, he notes; transferring Fourth Amendment protection from places to people reads that word out of the text. And “their . . . papers,” he points out, can’t mean someone else’s records, so what does the Fourth Amendment have to do with a subpoena for the phone company’s files? And finally, Thomas asks, who’s to decide what a “reasonable” expectation is? That is a policy determination, not a judicial one—so shouldn’t Congress decide? Nevertheless, Chief Justice Roberts cast the deciding vote to uphold this nonsense, in line with half a century of Court-created rights that subverted the authority of the police to fight crime and of teachers and principals to discipline disruptive students.

***

In conclusion, let me shift my focus from constitutional law to ethics. It takes a certain kind of character to be capable of liberty, and Clarence Thomas embodies that character. Indeed, his character is bound up with his jurisprudence in an exemplary way.

Born in a shanty in a swampy Georgia hamlet founded by freed slaves, Thomas enjoyed a few Huck Finn-like years, until his divorced mother moved him and his younger brother to a Savannah slum tenement. On her meager maid’s wages, her children knew “hunger without the prospect of eating and cold without the prospect of warmth,” the Justice recalls. After a year of this, Thomas’s mother sent her two little boys a few blocks away, to live with her father and step-mother, a magical, Oliver Twist-like transformation.

Thomas’s grandfather, Myers Anderson, the self-made if semi-literate proprietor of a modest fuel oil business, lived in a sparkling clean cinderblock house with porcelain plumbing, a full fridge, and a no-excuses childrearing code that bred self-discipline and self-reliance. A convert to Catholicism, Anderson sent his grandsons to a strict parochial school—segregated like everything else in mid-century Savannah, but teaching that all men are created equal—and he put them to work delivering oil after school and on weekends. Summer vacation was no holiday for the boys: with their grandfather, they built a house on 60 rural acres. Thereafter they tilled the fields every summer, harvested the crops, and butchered livestock for winter food. Anderson urged them on with his rich stock of moral maxims, including, “Where there’s a will, there’s a way.” There wasn’t a spare minute in the year for the boys to fall into street culture, which Anderson feared.

These lessons in self-reliance formed the bedrock of Thomas’s worldview. He temporarily flouted them, he recounts, during his student black-radical phase, when he and his college comrades spouted off about how they were “oppressed and victimized” by “a culture irretrievably tainted by racism.” Visits home became “quite strained,” he recalls. “My grandfather was no victim, and he didn’t send me to school to become one.”

By Thomas’s senior year, he had snapped out of it. His old self-reliance expanded from a personal creed to a political one, as he reflected upon how much his college stance of victimhood had threatened to diminish and impede him, especially compared to his grandfather’s heroic independence. He also pondered deeply the harms that affirmative action—purportedly America’s atonement for its historic sins—had done to his black classmates at Holy Cross and Yale Law. Thomas saw that it led to failure and grievance by placing smart but ill-prepared kids in out-of-their-league institutions and branding successes like him with the imputation of inferiority. His nine years as a federal civil rights panjandrum, running the civil rights division of President Reagan’s Department of Education and then the Equal Employment Opportunity Commission, confirmed his impression that “there is no governmental solution” to black America’s problems—a conclusion underlying the anti-affirmative action opinions he has written on the Court. In this equal opportunity nation, black citizens must forge their own fate, like all other Americans. Where there’s a will, there’s a way.

Regardless of race, everybody faces adversity and must choose whether to buckle down and surmount it, shaping his own fate, or to blame the outcome on powerful forces that make him ineluctably a victim—forces that only a mighty government can master. The Framers’ Constitution presupposes citizens of the first kind. Without them, and a culture that nurtures them, no free nation can long endure.

Copyright © 2019 Hillsdale College. All rights reserved.

Marijuana, Mental Illness, and Violence

Marijuana, Mental Illness, and Violence

Imprimus, January 2019 • Volume 48, Number 1

Alex Berenson

    Seventy miles northwest of New York City is a hospital that looks like a prison, its drab brick buildings wrapped in layers of fencing and barbed wire. This grim facility is called the Mid-Hudson Forensic Psychiatric Institute. It’s one of three places the state of New York sends the criminally mentally ill—defendants judged not guilty by reason of insanity.

    Until recently, my wife Jackie­—Dr. Jacqueline Berenson—was a senior psychiatrist there. Many of Mid-Hudson’s 300 patients are killers and arsonists. At least one is a cannibal. Most have been diagnosed with psychotic disorders like schizophrenia that provoked them to violence against family members or strangers.

A couple of years ago, Jackie was telling me about a patient. In passing, she said something like, Of course he’d been smoking pot his whole life.

Of course? I said.

Yes, they all smoke.

So marijuana causes schizophrenia?

    I was surprised, to say the least. I tended to be a libertarian on drugs. Years before, I’d covered the pharmaceutical industry for The New York Times. I was aware of the claims about marijuana as medicine, and I’d watched the slow spread of legalized cannabis without much interest.

Jackie would have been within her rights to say, I know what I’m talking about, unlike you. Instead she offered something neutral like, I think that’s what the big studies say. You should read them.

So I did. The big studies, the little ones, and all the rest. I read everything I could find. I talked to every psychiatrist and brain scientist who would talk to me. And I soon realized that in all my years as a journalist I had never seen a story where the gap between insider and outsider knowledge was so great, or the stakes so high.

    I began to wonder why—with the stocks of cannabis companies soaring and politicians promoting legalization as a low-risk way to raise tax revenue and reduce crime—I had never heard the truth about marijuana, mental illness, and violence.

***

    Over the last 30 years, psychiatrists and epidemiologists have turned speculation about marijuana’s dangers into science. Yet over the same period, a shrewd and expensive lobbying campaign has pushed public attitudes about marijuana the other way. And the effects are now becoming apparent.

    Almost everything you think you know about the health effects of cannabis, almost everything advocates and the media have told you for a generation, is wrong.

They’ve told you marijuana has many different medical uses. In reality marijuana and THC, its active ingredient, have been shown to work only in a few narrow conditions. They are most commonly prescribed for pain relief. But they are rarely tested against other pain relief drugs like ibuprofen—and in July, a large four-year study of patients with chronic pain in Australia showed cannabis use was associated with greater pain over time.

They’ve told you cannabis can stem opioid use—“Two new studies show how marijuana can help fight the opioid epidemic,” according to Wonkblog, a Washington Post website, in April 2018— and that marijuana’s effects as a painkiller make it a potential substitute for opiates. In reality, like alcohol, marijuana is too weak as a painkiller to work for most people who truly need opiates, such as terminal cancer patients. Even cannabis advocates, like Rob Kampia, the co-founder of the Marijuana Policy Project, acknowledge that they have always viewed medical marijuana laws primarily as a way to protect recreational users.

As for the marijuana-reduces-opiate-use theory, it is based largely on a single paper comparing overdose deaths by state before 2010 to the spread of medical marijuana laws— and the paper’s finding is probably a result of simple geographic coincidence. The opiate epidemic began in Appalachia, while the first states to legalize medical marijuana were in the West. Since 2010, as both the epidemic and medical marijuana laws have spread nationally, the finding has vanished. And the United States, the Western country with the most cannabis use, also has by far the worst problem with opioids.

Research on individual users—a better way to trace cause and effect than looking at aggregate state-level data—consistently shows that marijuana use leads to other drug use. For example, a January 2018 paper in the American Journal of Psychiatry showed that people who used cannabis in 2001 were almost three times as likely to use opiates three years later, even after adjusting for other potential risks.

Most of all, advocates have told you that marijuana is not just safe for people with psychiatric problems like depression, but that it is a potential treatment for those patients. On its website, the cannabis delivery service Eaze offers the “Best Marijuana Strains and Products for Treating Anxiety.” “How Does Cannabis Help Depression?” is the topic of an article on Leafly, the largest cannabis website. But a mountain of peer-reviewed research in top medical journals shows that marijuana can cause or worsen severe mental illness, especially psychosis, the medical term for a break from reality. Teenagers who smoke marijuana regularly are about three times as likely to develop schizophrenia, the most devastating psychotic disorder.

    After an exhaustive review, the National Academy of Medicine found in 2017 that “cannabis use is likely to increase the risk of developing schizophrenia and other psychoses; the higher the use, the greater the risk.” Also that “regular cannabis use is likely to increase the risk for developing social anxiety disorder.”

***

    Over the past decade, as legalization has spread, patterns of marijuana use—and the drug itself—have changed in dangerous ways.

    Legalization has not led to a huge increase in people using the drug casually. About 15 percent of Americans used cannabis at least once in 2017, up from ten percent in 2006, according to a large federal study called the National Survey on Drug Use and Health. (By contrast, about 65 percent of Americans had a drink in the last year.) But the number of Americans who use cannabis heavily is soaring. In 2006, about three million Americans reported using cannabis at least 300 times a year, the standard for daily use. By 2017, that number had nearly tripled, to eight million, approaching the twelve million Americans who drank alcohol every day. Put another way, one in 15 drinkers consumed alcohol daily; about one in five marijuana users used cannabis that often.

Cannabis users today are also consuming a drug that is far more potent than ever before, as measured by the amount of THC—delta-9-tetrahydrocannabinol, the chemical in cannabis responsible for its psychoactive effects—it contains. In the 1970s, the last time this many Americans used cannabis, most marijuana contained less than two percent THC. Today, marijuana routinely contains 20 to 25 percent THC, thanks to sophisticated farming and cloning techniques—as well as to a demand by users for cannabis that produces a stronger high more quickly. In states where cannabis is legal, many users prefer extracts that are nearly pure THC. Think of the difference between near-beer and a martini, or even grain alcohol, to understand the difference.

These new patterns of use have caused problems with the drug to soar. In 2014, people who had diagnosable cannabis use disorder, the medical term for marijuana abuse or addiction, made up about 1.5 percent of Americans. But they accounted for eleven percent of all the psychosis cases in emergency rooms—90,000 cases, 250 a day, triple the number in 2006. In states like Colorado, emergency room physicians have become experts on dealing with cannabis-induced psychosis.

Cannabis advocates often argue that the drug can’t be as neurotoxic as studies suggest, because otherwise Western countries would have seen population-wide increases in psychosis alongside rising use. In reality, accurately tracking psychosis cases is impossible in the United States. The government carefully tracks diseases like cancer with central registries, but no such registry exists for schizophrenia or other severe mental illnesses.

On the other hand, research from Finland and Denmark, two countries that track mental illness more comprehensively, shows a significant increase in psychosis since 2000, following an increase in cannabis use. And in September of last year, a large federal survey found a rise in serious mental illness in the United States as well, especially among young adults, the heaviest users of cannabis.

According to this latter study, 7.5 percent of adults age 18-25 met the criteria for serious mental illness in 2017, double the rate in 2008. What’s especially striking is that adolescents age 12-17 don’t show these increases in cannabis use and severe mental illness.

A caveat: this federal survey doesn’t count individual cases, and it lumps psychosis with other severe mental illness. So it isn’t as accurate as the Finnish or Danish studies. Nor do any of these studies prove that rising cannabis use has caused population-wide increases in psychosis or other mental illness. The most that can be said is that they offer intriguing evidence of a link.

Advocates for people with mental illness do not like discussing the link between schizophrenia and crime. They fear it will stigmatize people with the disease. “Most people with mental illness are not violent,” the National Alliance on Mental Illness (NAMI) explains on its website. But wishing away the link can’t make it disappear. In truth, psychosis is a shockingly high risk factor for violence. The best analysis came in a 2009 paper in PLOS Medicine by Dr. Seena Fazel, an Oxford University psychiatrist and epidemiologist. Drawing on earlier studies, the paper found that people with schizophrenia are five times as likely to commit violent crimes as healthy people, and almost 20 times as likely to commit homicide.

NAMI’s statement that most people with mental illness are not violent is of course accurate, given that “most” simply means “more than half”; but it is deeply misleading. Schizophrenia is rare. But people with the disorder commit an appreciable fraction of all murders, in the range of six to nine percent.

     “The best way to deal with the stigma is to reduce the violence,” says Dr. Sheilagh Hodgins, a professor at the University of Montreal who has studied mental illness and violence for more than 30 years.

    The marijuana-psychosis-violence connection is even stronger than those figures suggest. People with schizophrenia are only moderately more likely to become violent than healthy people when they are taking antipsychotic medicine and avoiding recreational drugs. But when they use drugs, their risk of violence skyrockets. “You don’t just have an increased risk of one thing—these things occur in clusters,” Dr. Fazel told me.

    Along with alcohol, the drug that psychotic patients use more than any other is cannabis: a 2010 review of earlier studies in Schizophrenia Bulletin found that 27 percent of people with schizophrenia had been diagnosed with cannabis use disorder in their lives. And unfortunately—despite its reputation for making users relaxed and calm—cannabis appears to provoke many of them to violence.

A Swiss study of 265 psychotic patients published in Frontiers of Forensic Psychiatry last June found that over a three-year period, young men with psychosis who used cannabis had a 50 percent chance of becoming violent. That risk was four times higher than for those with psychosis who didn’t use, even after adjusting for factors such as alcohol use. Other researchers have produced similar findings. A 2013 paper in an Italian psychiatric journal examined almost 1,600 psychiatric patients in southern Italy and found that cannabis use was associated with a ten-fold increase in violence.

The most obvious way that cannabis fuels violence in psychotic people is through its tendency to cause paranoia—something even cannabis advocates acknowledge the drug can cause. The risk is so obvious that users joke about it and dispensaries advertise certain strains as less likely to induce paranoia. And for people with psychotic disorders, paranoia can fuel extreme violence. A 2007 paper in the Medical Journal of Australia on 88 defendants who had committed homicide during psychotic episodes found that most believed they were in danger from the victim, and almost two-thirds reported misusing cannabis—more than alcohol and amphetamines combined.

Yet the link between marijuana and violence doesn’t appear limited to people with preexisting psychosis. Researchers have studied alcohol and violence for generations, proving that alcohol is a risk factor for domestic abuse, assault, and even murder. Far less work has been done on marijuana, in part because advocates have stigmatized anyone who raises the issue. But studies showing that marijuana use is a significant risk factor for violence have quietly piled up. Many of them weren’t even designed to catch the link, but they did. Dozens of such studies exist, covering everything from bullying by high school students to fighting among vacationers in Spain.

In most cases, studies find that the risk is at least as significant as with alcohol. A 2012 paper in the Journal of Interpersonal Violence examined a federal survey of more than 9,000 adolescents and found that marijuana use was associated with a doubling of domestic violence; a 2017 paper in Social Psychiatry and Psychiatric Epidemiology examined drivers of violence among 6,000 British and Chinese men and found that drug use—the drug nearly always being cannabis—translated into a five-fold increase in violence.

Today that risk is translating into real-world impacts. Before states legalized recreational cannabis, advocates said that legalization would let police focus on hardened criminals rather than marijuana smokers and thus reduce violent crime. Some advocates go so far as to claim that legalization has reduced violent crime. In a 2017 speech calling for federal legalization, U.S. Senator Cory Booker said that “states [that have legalized marijuana] are seeing decreases in violent crime.” He was wrong.

The first four states to legalize marijuana for recreational use were Colorado and Washington in 2014 and Alaska and Oregon in 2015. Combined, those four states had about 450 murders and 30,300 aggravated assaults in 2013. Last year, they had almost 620 murders and 38,000 aggravated assaults—an increase of 37 percent for murders and 25 percent for aggravated assaults, far greater than the national increase, even after accounting for differences in population growth.

Knowing exactly how much of the increase is related to cannabis is impossible without researching every crime. But police reports, news stories, and arrest warrants suggest a close link in many cases. For example, last September, police in Longmont, Colorado, arrested Daniel Lopez for stabbing his brother Thomas to death as a neighbor watched. Daniel Lopez had been diagnosed with schizophrenia and was “self-medicating” with marijuana, according to an arrest affidavit.

In every state, not just those where marijuana is legal, cases like Lopez’s are far more common than either cannabis or mental illness advocates acknowledge. Cannabis is also associated with a disturbing number of child deaths from abuse and neglect—many more than alcohol, and more than cocaine, methamphetamines, and opioids combined—according to reports from Texas, one of the few states to provide detailed information on drug use by perpetrators.

These crimes rarely receive more than local attention. Psychosis-induced violence takes particularly ugly forms and is frequently directed at helpless family members. The elite national media prefers to ignore the crimes as tabloid fodder. Even police departments, which see this violence up close, have been slow to recognize the trend, in part because the epidemic of opioid overdose deaths has overwhelmed them.

    So the black tide of psychosis and the red tide of violence are rising steadily, almost unnoticed, on a slow green wave.

***

    For centuries, people worldwide have understood that cannabis causes mental illness and violence—just as they’ve known that opiates cause addiction and overdose. Hard data on the relationship between marijuana and madness dates back 150 years, to British asylum registers in India. Yet 20 years ago, the United States moved to encourage wider use of cannabis and opiates.

    In both cases, we decided we could outsmart these drugs—that we could have their benefits without their costs. And in both cases we were wrong. Opiates are riskier, and the overdose deaths they cause a more imminent crisis, so we have focused on those. But soon enough the mental illness and violence that follow cannabis use will also be too widespread to ignore.

Whether to use cannabis, or any drug, is a personal decision. Whether cannabis should be legal is a political issue. But its precise legal status is far less important than making sure that anyone who uses it is aware of its risks. Most cigarette smokers don’t die of lung cancer. But we have made it widely known that cigarettes cause cancer, full stop. Most people who drink and drive don’t have fatal accidents. But we have highlighted the cases of those who do.

We need equally unambiguous and well-funded advertising campaigns on the risks of cannabis. Instead, we are now in the worst of all worlds. Marijuana is legal in some states, illegal in others, dangerously potent, and sold without warnings everywhere.

    But before we can do anything, we — especially cannabis advocates and those in the elite media who have for too long credulously accepted their claims — need to come to terms with the truth about the science on marijuana. That adjustment may be painful. But the alternative is far worse, as the patients at Mid-Hudson Forensic Psychiatric Institute — and their victims — know.

    The above article was adapted from a speech delivered on January 15, 2019, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C.

 

    Alex Berenson is a graduate of Yale University with degrees in history and economics. He began his career in journalism in 1994 as a business reporter for the Denver Post, joined the financial news website TheStreet.com in 1996, and worked as an investigative reporter for The New York Times from 1999 to 2010, during which time he also served two stints as an Iraq War correspondent. In 2006 he published The Faithful Spy, which won the 2007 Edgar Award for best first novel from the Mystery Writers of America. He has published ten additional novels and two nonfiction books, The Number: How the Drive for Quarterly Earnings Corrupted Wall Street and Corporate America and Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence.

Donald Trump, #MeToo, Facebook, And The Breakdown Of Institutional Power

January 28, 2018
 

Carlos Barria / Reuters

The phantom feeling that something should’ve happened, but didn’t or won’t, flows through each of the central stories of the moment: Trump’s presidency, the nightmare revelations of sexual abuse, and the accumulating problems of Facebook, Twitter, and YouTube. What institutional power looks like in 2018.
    Donald Trump has an unusual kind of power: He reveals weakness.
    This quality he extends to all things — people, traditions, movements — and while you know all this by now, the way he traffics in lingering doubts (e.g., Lyin’ Ted) and the malleable dignity of those around him, in all the small compromises people make with themselves toward an end, what all these individual shortfalls do in the aggregate is to expose the fragility of our modern national institutions.
    What exactly, for instance, is supposed to happen if the president wonders why we accept immigrants from “shithole” countries? Or says a group of white supremacists included “very fine” people? Backhandedly calls the North Korean dictator short and fat?
    Nothing, of course. There’s no institution to guard against any of that. And since there’s no way to quantify the harm in any of it, either (no laws broken, no physical destruction), all these things that President Trump says just land in a weird rhetorical DMZ, where there is no recourse. That unease defined the last year. And it’s this kind of phantom feeling that something should’ve happened, but didn’t or won’t, that flows through each of the central stories of the moment: Trump’s presidency, the nightmare revelations of sexual abuse, and the accumulating problems of Facebook, Twitter, and YouTube. What brings all these things together is the assault, from the White House and from journalists, for worse and for better, on core institutions.
    With Trump, it’s like constantly watching a fly ball fall between a shortstop and a left fielder — that kind of suspended anxiety free fall, where nobody really knows what to do, because there’s nothing to do. Morning in America is disorientingly open with possibility, because who knows where Trump will take things next?
    “It’s oddly riveting,” George Saunders wrote during the campaign, nearly two years ago, “watching someone take such pleasure in going so much farther out on thin ice than anyone else as famous would dare to go.” Nobody ever decided whether that dynamic drove or hindered Trump’s success, but what it definitely did was expose the extent to which the American political system was relying on shame to keep it in check.
    Trump constantly subverted the expectation of what a normal candidate would do (e.g., apologize for accusing Judge Curiel of bias based on his Mexican-American heritage) by never conceding any mistake. The idea generally is that campaigns, like corporations, are basically built to apologize, walk back, and/or preemptively manage expectations so that the minimum number of voters take offense at any given thing. Trump rejected that framework entirely, but stretched the understanding of what was normal so far that there was a sense (a flame that apparently burns eternal) that some objective, imagined hand of authority — the Republican Party or the RNC or the delegates at the convention — would step in. No one did, because the uneasy reality is that candidates and their own campaigns alone govern the candidate and campaign’s conduct. If you’re unafraid of the public’s distaste, there are a lot of places you can run with that. Basically: If a candidate says, well, listen, I’m doing this and you can’t stop me — maybe you actually can’t. Trump, then, is like some classical Greek, Shakespearean character sent to reveal that weakness in the system.
    That has produced some nostalgia from all different sides for back before, when a political party might change the rules on a candidate, or the media could more tightly control what viewers saw and heard. But these are also the same kinds of institutional controls that made all Harvey Weinstein’s accusers go away for so long, and that realization — the way institutions made bad things go away — links a lot of these kinds of stories.
    Smash the exterior of an institution and you may reveal catacombs of cruelty, shame, sickness, all the terrible things people with power can do to those without it in the corridor of a hotel suite, inside an office, inside a home, in small places you feel as though you are not meant to be. This past year dropped floodlights into the biblical depths of human behavior — the way an obsession with control or some sadness within a person can curdle and warp in the dark of a professional, civilized society. And for all the righteous strength witnessed in and derived from the crack-up of an open secret, each begins with long-suppressed anguish. “That’s the most horrible part of it,” Lucia Evans told the New Yorker of Harvey Weinstein. “People give up, and then they feel like it’s their fault.”
    If you read all these stories and start writing down (or calculating out) the ages of the people in them, the interns and assistants and desk assistants and students, especially the women (and men) whose names you’ve never heard before, a pattern emerges. “We were so young at the time,” Karen Katz, who’d worked at Weinstein’s Miramax, told the Times. “We did not understand how wrong it was or how [she] should deal with it.” Many of these stories concern people too inexperienced to know who to tell, or how or when. “I still on some level thought I had been a tiny adult,” one man explained of how he did not appreciate, until he was an adult, the way he says Kevin Spacey abused him when he was 14. “I assumed I was the problem for thinking badly of you,” Aly Raisman said of Larry Nassar, the Olympic doctor who is accused of abusing more than a hundred girls. “I wouldn’t allow myself to believe that the problem was you.”
    A robust institution can be isolating in that way. You can’t identify patterns like those alone. You can suffer alone, questioning even your own story. You can also be the cool cynic wise to the harsh ways of the world (“I felt a weird sense of pride about being able to ‘handle’ the environment,” wrote a colleague) only to realize, in retrospect, years later, you were in over your head. “I was, like, ‘Look, man, I am no fucking fool,’” Asia Argento said of Weinstein. “But, looking back, I am a fucking fool. And I am still trying to come to grips with what happened.”
    The wild and unsettling thing about the last six months is both the pervasiveness of abuse and harassment, and how what’s at the heart of an open secret often turns out to be much worse; there is a sudden realization that maybe something terrible has been lurking beside you all along. Because it’s apparently at the ballet, on the manufacturing floor, inside the massage parlor, in jail, at the Olympics, on the morning show, at the theater, on the radio, on the court, on Capitol Hill. This is where you can end up wondering what the point of a “civic institution” even is. And on the most basic level — in the most amateur-hour intro philosophy seminar way — isn’t the idea that any one of these institutions (the church, the military, the government, the media, any of them) is meant to give people place and purpose, and to judiciously amplify some virtue in men (strength or kindness or charity), or to bend our collective power toward some common benefit (safety or prosperity), and above all, isn’t the idea to blunt wickedness? But here you have the agents who kept taking women to Weinstein, the studios that didn’t look at his finances, parts of the tabloid machine under his control, the way everyone seemed to know, and it’s like a blood disease — everything an institution is supposed to do, but corroded, and turned in on itself.
    And then there’s all of us, consuming this weird year through our phones, living inside new institutions that are mind-blowing in scale and horribly ill-equipped for the task of handling us. Whatever it was that happened — the election? — something has shifted in the way the media, lawmakers, and even some people on them view the platforms.
    “Facebook has grown so big, and become so totalizing, that we can’t really grasp it all at once,” Max Read wrote last year, listing off a dozen different comparisons the platform has elicited, from the Catholic church to a railroad company. “Like a four-dimensional object, we catch slices of it when it passes through the three-dimensional world we recognize.” Twitter (in 34 languages and producing inconceivable numbers of words every second) and YouTube (in 88 countries with people watching 1 billion hours each day) operate in similar dimensions.
    Nobody can monitor that kind of volume — but algorithms can’t quite either, and so all kinds of bad behavior can only belatedly be contained, if at all.
    YouTube will soon employ more than 10,000 people to screen videos (and train algorithms) to detect child exploitation (e.g., kids “restrained with ropes or tape”) and extremism (e.g., jihadi videos); that news preceded the 48 hours a (now former) YouTuber’s video lived online featuring a dead man’s body inside Japan’s suicide forest. Twitter still, still struggles with harassment, especially in places like India, where women are on the receiving end of harassment in six different local languages. In realms where political news gets delivered and consumed, the platform can feel constantly combative, meta, and wearing — kind of like a game of Hungry Hungry Hippos where the hippos are outfitted with razors. Facebook has found itself the host body for live shootings, dystopian authoritarian propaganda, and a philosophical debate about the meaning of news and truth, in which a small move could result in shifting reality for someone. Kevin Roose compared an admission from Facebook leadership that they did not realize ad targeting would be used to reach anti-Semites to Victor Frankenstein’s lament: “I lived in daily fear lest the monster whom I had created should perpetrate some new wickedness.”
    Basically, the platforms are dealing with a) the loftiest, most existential of questions about information and speech, and b) every kind of domestic dispute in every small town across dozens of countries every hour of every day.
    And every response to these super-old problems — rumors, lies, abuse — tends to be thin and unsatisfying, almost alien, from the endless vow to improve transparency to Facebook’s intention to have 2 billion people decide the trustworthiness of news outlets. These are the products of a culture that sometimes “views nearly all content as agnostic, and everything else as a math problem.” The underlying principle to these platforms isn’t some huge mystery: Everything is keyed toward cascading reactions, an endless series of provocations, both good and bad. “I wish I could guarantee that the positives are destined to outweigh the negatives,” wrote Facebook’s Samidh Chakrabarti last week, “but I can’t.”
    There’s been a lot of talk, over this first year of Trump, about an abstract sense that things are falling apart, or that it’s not the same country it used to be, or that this feels like the end of an era, even if what that era was cannot be so easily defined. This is, I think, partly a function of the way our phones intensify everything intellectually, in both good and bad ways, so that you can feel, within the space of minutes, a directionless jolt of anxiety at every Trump tweet about North Korea and the immersive warmth of texting with exactly who you hope most to hear from. It is disorienting to know so much and feel so much all the time. It is also a function of the reality where we get hit again, and again, and again, with reminders that fundamental assumptions about the society we live in (that you can’t say that, that you can’t do that, that you couldn’t have hid something like that) aren’t really true. It’s too difficult to keep a secret in 2018, especially about the bad things people can do to one another.
    So maybe it’s political insecurity that’s causing that static in the signal, or maybe it’s disillusionment with these old, sick systems that kept sending people to Harvey Weinstein and Larry Nassar, or maybe it’s the sense that the platforms are like big boxes that we’ve thrown the full crush of humanity into. Whatever it is, now we are free to tear apart every last institution until every last vestige of that kind of pain is gone, hurtling toward some new future where you can only hope the kindness in our hearts wins out.●

Franklin and the Free Press

Franklin and the Free Press

Arthur Milikh

 

    Many Americans today have an ambivalent stance toward the free press. On the one hand, nearly all citizens assent to the idealism that originally justified its creation: We value the discovery and circulation of the truth, and the prevention of governmental tyranny. As such, the press is meant to serve both intellectual and political liberty. Yet, on the other hand, few citizens directly experience this idealism, feeling instead the press’s forcefulness, flattery, vehemence, and sometimes fanaticism — often akin to warfare directed at their minds and sentiments. Rather than heading off intellectual and political dogma, the press often creates or disseminates it. A great disparity thus exists between the press’s ideals and its practice today.

    As originally understood by many of America’s founders, the open circulation of the truth through the press would serve both society and the individual. As Thomas Jefferson explains,

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press.

In addition, many of America’s founders also understood the press as an essential bulwark against government for the securing of individual rights. Jefferson, again, summarizes:

     I am…for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.

     The press, and especially the mass press, is a means by which to enforce accountability and responsibility in the government, and to thereby compel government’s virtue.

Moreover, newspapers even help “maintain civilization,” as Alexis de Tocqueville observes in Democracy in America. By giving democratic citizens common opinions, common sympathies, and a resource for common action, newspapers can help prevent the individuation and isolation of citizens to which democracy disposes them.

These idealistic aims markedly diverge from the mass press’s actual behavior and its effects on republicanism. And that is not a new problem. During America’s founding, as historian Leonard Levy observes, an “extraordinary partisanship, vitality, and invective had become ordinary” in the press. Indeed, today’s press has similar inclinations, often imposing onto the public its taste for derision and ridicule, which it substitutes for depth and thoughtfulness. Examples abound, but consider the Huffington Post‘s editor’s note, added to nearly every article referencing Donald Trump during the 2016 election:

     “Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.”

Not stopping at public figures, the press also satisfies its penchant for crushing the will of private citizens and groups through shame and fear, making them feel their smallness and brittleness. Its behavior, in sum, often discloses the press’s tacit opinion concerning America’s moral hierarchy: that the press is not merely a fourth estate, but the judge of would-be rulers, and therefore the master, or at least the kingmaker. Yet it remains unclear whether the press rules with the spirit of humanity and prudence, or whether it is animated by the desire to dominate the public mind. It frequently vacillates between these extremes.

By contrast to the early Jefferson, Benjamin Franklin had no illusions about the character of the press in America. Few serious thinkers have reflected with as much clarity on the nature of the press as Franklin. And no other thinker has had so much experience and commercial success in it. A lifelong defender of the freedom of the press, Franklin was nevertheless not uncritical of its effects.

Franklin’s short but rich essay, “An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press,” written a year before his death in 1790, lays out a comprehensive analysis of the press: its effects on politics and the democratic mind, its mode of rule, and the origins of its power. His study is, in a sense, an examination of the effectual truth of the principle underlying freedom of the press. His reflections are urgently needed today.

The press, Franklin argues, unlike any other republican institution, has a power that does not fall under any constitutional check. It is motivated to act viciously by its very principle (created to attack dogma, false knowledge, and political corruption), though in practice it is neither limited nor moderated by either its own idealism or by any institution. While the press claims to rule like a court — passing all things before its judgment — it may rule tyrannically because it is liberated from considerations of justice or precedent. Thus unchecked, the press can subvert rational habits of mind among citizens and reverence for the law while flattering public resentments and antagonizing citizens’ pride. Franklin was consciously witnessing the birth of a new class, a kind of press corps, created by this new principle, and his assessment of the human content of this class is contrasted with the powers it wields. For Franklin, a free press must be checked by a vigilant and jealous public, which he hopes to energize against abuses of liberty.

Franklin’s literary style differs from that of the other founders. As University of Chicago professor Ralph Lerner has observed, Franklin often “works on us through indirection and insinuation. But he leaves it to us to catch his drift.” In his analysis of the press, Franklin tacitly points out both the problems with our idealism (so as to soften their deleterious effects) and the conflicts in our motives and hopes (so as to encourage a liberating skepticism). He does so with a view to protecting democratic self-respect while exposing and ridiculing the ability of the press to undermine the host democracy’s institutions.

POWER AND SUBVERSION

In order to get at Franklin’s perspective on the press in America, we need to take a step back to get a sense of its powers. According to Franklin, the press’s powers resemble those of a “court,” a term he uses in several ways. In the first sense, the press resembles a conventional court of law: It has the power to “judge, sentence, and condemn to infamy” citizens both public and private. The press even carries out court-like powers by conducting what look like hearings and inquiries. And since in a republic none can claim superiority to the law, “all persons” and “all inferior courts” are subject to its jurisdiction and judgment. In this way, the press claims to imitate the majesty, objectivity, and moral authority of a court of law.

The press does these things, however, without being “governed by any of the rules of common courts of law.” Unlike a legal court, the press is not part of the judicial system and is therefore not subject to the institutional checks that moderate political power and authority. While the claims to equity and justice authorize such powers in a court of law, the press is neither restrained by legal precedent nor by evidentiary standards that assure the maintenance of those claims. Thus, for example, rather than relying on witnesses sworn to truthfulness, it may use anonymous sources, who suffer no consequences for dishonesty. In fact, as it often rules through mere “accusation,” no limits seem to exist on the nature or extent of the accusations, just as there are no limits on who can be accused.

The press’s proceedings occur “with or without inquiry or hearing, at the court’s discretion” (emphasis in original). The press acts on its own initiative, rather than through citizen or executive complaint. It can pick and choose its own cases — selectively closing its eyes to some, while opening them to others — not with a view to satisfying justice or the law, but in accordance with its own prejudices or interests. Since the press follows its own discretion, its operations and methods are not fully knowable, and one therefore cannot appeal to it rationally. The press is conscious of this supremacy, Franklin contends.

The press also resembles a religious court, Franklin half-jokes, the “Spanish Court of Inquisition,” in its moral authority to force and shape belief through fear and intimidation. Like the Spanish Inquisition, the press enforces its pre-eminence by reaching into individual souls and compelling belief. When the press acts against individuals and institutions:

The accused is allowed no grand jury to judge of the truth of the accusation before it is publicly made, nor is the Name of the Accuser made known to him, nor has he an Opportunity of confronting the Witnesses against him; for they are kept in the dark, as in the Spanish Court of Inquisition.

The open presentation of evidence of wrongdoing corroborated by facts shows respect for rational and transparent procedures that embody the spirit of justice. Such proceedings presume citizens’ intellectual capacity to be convinced by the force of facts and arguments. With the Inquisition, to the contrary, assent is founded on fear and intimidation, as one would expect from despotism. Here there is darkness, mystery, and anxious anticipation. In its practice, Franklin contends, the press contradicts the principles by which it justifies its authority: It claims that belief stems from the free and rational persuasion of the mind, but in its deeds it insists that belief should be compelled through its own powers of insinuation, intimidation, and accusation.

The press has a despotic inclination for making citizens experience its overwhelming power: It takes an “honest” and “good” citizen who, through what is almost a miraculous transformation, “in the same Morning” is judged and condemned by the press to be a “Rogue and a Villain” (emphasis in the original). Its rapidity and forcefulness appear to be almost irresistible. Though the press does not burn individuals at the stake, nonetheless, like tribunals of the Spanish Inquisition, Franklin sees in the press the capacity for fanaticism originating in complete confidence in its ability to judge.

This unrestrained power can even willfully direct public opinion against the law itself, perhaps despite the public’s interests. We witness one contemporary example of this power. Whatever one’s view of immigration policy might be, the press, by relentlessly calling “illegal aliens” “undocumented immigrants” for years, has subtly altered public sympathies against would-be enforcers of the law. The press can make the law appear weak and its authority questionable in comparison to its own power.

Although prepared to subvert the law at times, the press relies on the law’s protection when using it for its own advantages:

[I]f an officer of this court [the unchecked untruthful press] receives the slightest check for misconduct in this his office, he claims immediately the rights of a free citizen by the Constitution, and demands to know his accuser, to confront the witnesses, and to have a fair trial by a jury of his peers.

In sum, the press sometimes reveres and sometimes subverts the law; sometimes it guides public opinion toward the law, sometimes against it. But the press always seems to know its interest in maintaining its superiority over the public mind.

SUPERIORITY AND MEDIOCRITY

Franklin asks us to contrast this remarkable power with the character of the members of the class wielding it. The freedom of the press creates a new human type that dominates the liberal-democratic landscape to this day. This new type is “appointed to this great Trust” of guiding the public intellect, deciding upon citizens’ fates, and sometimes even determining the future of the nation.

This new class, Franklin notes, is open to anyone. The officers of the press corps are not appointed by an executive authority on the basis of their virtue. Nor is the press a hereditary institution governed by and therefore subordinated to considerations of honor or tradition. (Franklin is not in favor of such alternatives, of course.) As such, he observes that under the new democratic conditions, this class is self-created, so to speak:

     [A]ny Man who can procure Pen, Ink, and Paper, with a Press, and a huge pair of Blacking Balls, may commissionate himself; and his court is immediately established in the plenary Possession and exercise of its rights.

    The effect of this, for Franklin, is the creation of a class requiring neither “Ability, Integrity, [nor] Knowledge.” Surely these qualities sometimes exist — look at Franklin! — but just as surely they are not necessary prerequisites. Franklin chooses his words carefully, subtly leading us to ask whether, in practice, these virtues often become their opposites: Sensationalism will often be mistaken for ability, contempt for all those inferior to it mistaken for integrity, and pedantry mistaken for knowledge. Franklin suggests that the public mind may come to imitate this confusion of virtue and vice under the press’s influence.

This class of unelected opinion makers is also unified by a specific motive, Franklin contends. It is a community that shares the “privilege of accusing and abusing the other four hundred and ninety-nine parts at their pleasure.” These numbers are invented, of course, but Franklin is pointing to the hidden motive unifying this community — the mutual indulgence in feigned superiority, the pleasure of punishing, and a taste for contempt for one’s fellow citizens and for would-be rulers. Can one serve the public if one has contempt for it?

Furthermore, Franklin observes that the powers granted to the press, through the principle authorizing its existence, often culminate in the appearance of principled courage. Feeling its superiority to individual citizens or other public institutions, the press rebels against inquiries into its authority and the modes of its rule: “For, if you make the least complaint of the judge’s conduct, he daubs his blacking balls in your face wherever he meets you.” What at first glance may seem like dignified courage in carrying out its duties is perhaps merely the protection of its own superiority coupled with vengeance against those questioning it.

Indeed, the press, Franklin argues, may use its capacity to “[mark] you out for the odium of the public, as an enemy to the liberty of the press,” in order to suppress dissent against its authority. This has the effect of crushing the voice of reason in citizens along with the self-confidence necessary for them to voice their thoughts publicly. Franklin tacitly suggests that, over time, citizens may lose their habits of reason through this kind of rule.

One barely needs to add that this class serves for its own “Emolument.” Franklin draws our attention to a dual unity in motive: Satisfying the pleasures of ruling citizens and indulging its own taste for contempt become financially lucrative under these new democratic circumstances. In an era of egalitarianism, most human beings are born without genuine wealth, the security of inherited social class and standing, or special destiny. Individuals therefore to a greater extent than ever before become their professions.

It’s important to point out that during Franklin’s time, owners of printing presses printed all kinds of things for profit: newspapers, books, and pamphlets, encompassing every subject, sometimes including the printing of the libelous and scurrilous as well. Our newspapers no longer do precisely this, of course (though it is subject to debate whether appearing to praise oneself for alleged objectivity, as newspapers do today, while printing what is essentially partisan, has polluted the moral and intellectual waters more than when, as during Franklin’s time, all citizens knew that the press was for hire). Nevertheless, the problem Franklin draws our attention to is still with us. When intermixed with the self-serving powers to command public opinion, merely aspiring to uphold a principle for one’s livelihood rarely results in independence of mind or judgment. In fact, the appearance of acting on principle can be lucrative.

As Franklin makes clear, it is not entirely obvious whether the press’s belief in its guiding principles is sincere, as it does not apply them equally to all other individuals or institutions. Today, for example, much of the press class is in favor of campaign-finance laws that regulate the expression of candidates, parties, and interest groups, but is uninterested in applying similar regulations to itself. Taken to its logical extreme, this may suggest that this class has a secret motive, aiming to limit free speech by making only its own speech acceptable. Its unwillingness to subject itself to the same standards of law and regulations as other authorities is suspect.

HUMAN WEAKNESS

Franklin also sees in the press a tendency to deform and undermine the idealism necessary for republicanism. Republicanism presumes that citizens are willing, at times, to sacrifice a great deal for liberty, like the signers of the Declaration of Independence who mutually pledged their lives, fortunes, and sacred honor. Yet it is difficult to love liberty if it is experienced as moral chaos, which the press can infuse into democratic life. In fact, Franklin fears that political liberty, as redefined by the press, may come to mean the “Liberty of affronting, calumniating, and defaming one another.” In such an environment, liberty may come to be experienced as burdensome, tedious, and ugly, encouraging citizens to “cheerfully consent to exchange [their] Liberty of Abusing others for the Privilege of not being abus’d [themselves].”

In theory, the freedom of the press presumes that what is most crucially common to all human beings is each individual’s rational faculty, on the basis of which modern republicanism is created and defended. Thus, for Franklin, among the highest manifestations of the freedom of the press is the “Liberty of discussing the Propriety of Public Measures and political opinions.” By this definition, he seems to mean the publication of works like the Federalist Papers (which appeared as a series of newspaper columns) or his own writings — though he is of course aware that this standard is rarely achieved in practice. Such writings elevate and deepen citizens. One should contrast Franklin’s understanding to the recently developed public view of speech which considers dignified any spasmodic effusion of half-formed feeling, obscenity, or agitation subversive of republicanism.

These powers to abuse rather than bolster republican idealism and rational habits of character, Franklin contends, find their “natural Support” in human resentment. Resentment, a “depravity” of the human character, is a powerful though hidden source of the press’s power over the mind. Franklin quotes Juvenal’s Satires to explain:

There is a Lust in Man no Charm can tame,
Of loudly publishing his Neighbour’s Shame.
On Eagle’s Wings immortal Scandals fly,
While virtuous Actions are but born and die.

Resentment is an ugly, double-sided passion. It leads one to assert moral superiority over others, thereby demanding superior desert for oneself, while simultaneously desiring that harm befall others so as to protect one’s own inflated self-appraisal. As Franklin politely puts it, “Whoever feels pain in hearing a good character of his neighbour, will feel a pleasure in the reverse.” Resentment does not even depend on one’s own faring well, for one can be resentful and at the same time prosperous.

Franklin is being neither flippant nor pedantic regarding the central importance of resentment. He is pointing to the deeper problem which resentment reveals — human confusion about desert. As Jerry Weinberger has argued in Benjamin Franklin Unmasked, among the central premises of Franklin’s philosophical thought is that human beings want more for themselves than they deserve. This desire deludes our judgment, distorts our opinion of ourselves, and to a great extent accounts for the human comedy of errors. It also accounts for our jealous hatred of others’ success.

This passion, in conflict with republicanism, is flattered by the press, Franklin argues. In amplifying and dignifying resentment, the press cultivates its own popularity and reach. There are always many “who, despairing to rise into distinction by their virtues, are happy if others can be depressed to a level with themselves.” In flattering the public’s resentment, the press blinds it to its own mediocrity, Franklin suggests. Today, this psychology follows a predictable pattern: tacitly or overtly belittling or ridiculing human greatness, cutting it down to a digestible size, while exposing and laughing at private vices — or, alternatively, encouraging indulgence in feigned great moral feeling without the requirement of sacrifice or sincerity. The steady stream of examples of baseness, greed, and dishonesty teach the lesson that such individuals are no better than you — in fact, they are worse, because you can look down upon them. By implicitly calling resentment high-mindedness in flattering its audience, the press often both ridicules virtue and avoids making mediocrity appear contemptible.

Franklin sees the formation of a community of mutual flattery between the press’s desire to rule and the public’s resentment. On the one hand, fostering resentments maintains the press’s power over the public — for in satisfying the public in such a way, it is allowed to govern the public’s tastes and passions. And the public, on the other hand, in showing its gratitude for not being targeted or undone by the press, redoubles rewards by showing obliging subordination.

Thus, in a final sense of the press’s playing the role of a “court,” it is akin to a monarchical court, for it serves a monarch — the public. Yet in serving its monarch, does the press play the role of the French revolutionary, re-enacting the guillotine by beheading individuals or institutions in order to satisfy the public’s resentments? Oddly, the press, originally conceived as an essential means by which to preserve political and intellectual freedom, may become a mechanism through which the public oppresses itself.  In suggesting that the lust to satisfy resentment guides “such minds, as have not been mended by religion, nor improved by good education,” Franklin is goading us to consider more closely the kind of education he is providing his readers, which can correct this natural defect. His wit makes us aware of our defects, while his humor attempts to shame us out of them.

LIBERTY OF PRIDE AND HONOR

Is it possible to correct for these abuses of the free press? Unlike the other powers enumerated in the Constitution, Franklin observes that the press has no corresponding check against it:

     [S]o much has been written and published on the federal Constitution, and the necessity of checks in all other parts of good government has been so clearly and learnedly explained, I find myself so far enlightened as to suspect some check may be proper in this part also; but I have been at a loss to imagine any that may not be construed an infringement of the sacred liberty of the press.

    Franklin jokes that the only check he can find is the “liberty of the cudgel.” In other words, the press is free to print as it pleases so long as citizens are free to go to an authentic offender “and break his head.” Franklin’s ludicrous solution points to a contradiction in republican laws.

Self-government presumes a certain measure of self-respect and pride among citizens. Republicanism depends on the conviction that individuals have the psychological and physical ability to order their lives and to legislate for themselves and their community on the basis of their judgment.

Individual pride, of course, cannot be given full reign in a republic, nor can its demands be fully satisfied. When carried to its extremes, pride points to absurd self-importance and tyranny. In republics, individual pride must be restrained to some degree for the protection of others’ rights, for too much of it can destroy a republic. Yet republican law puts man in an odd state: On the one hand, man desires the full security of his pride and therefore his reputation — loving his reputation perhaps more than his life, as Franklin observes — while the law constrains his ability to defend it fully against its attackers. Defending one’s self-respect, Franklin implies, is perhaps a right as much as any other. On the other hand, however, “the right [of the press] of abusing seems to remain in full force, the laws made against it being rendered ineffectual by the liberty of the press” (emphasis in original). Citizens cannot fully protect their self-respect while the press is given broad authorization to abuse it. For Franklin, the effect of this may be the weakening of citizens’ pride and the diminishing of their attachment to self-government, which correspondingly grows the space for the press’s influence over the mind.

What is to be done, according to Franklin? He jokes, “[L]eave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu” (emphasis in the original). Franklin wants the vindication of republican pride — not just because he honors such sentiments, but because he thinks that such a counterbalance or check, like the checks employed in other parts of the Constitution, is necessary against the press’s powers, too. In fact, the public can unite if it is affronted, “as it ought to be,” by the press’s abuses (emphasis in original). The public can show its “moderation,” he jokes, by “tarring and feathering, and tossing them in a blanket.” Franklin is of course not advocating such actions, but he does want the public to recall its power to humiliate.

Franklin concludes by emphasizing the need to secure citizens’ reputations:

    If, however, it should be thought that this proposal of mine may disturb the public peace, I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation.

    Balancing both liberties, for Franklin, ought to be among the highest considerations of legislators and statesmen — the liberty of the press and the liberty to defend one’s pride. One wonders whether Franklin here explicitly means only libel laws, or is also referring to citizens who are jealous of their liberty and who know their power.

OUR PRESS

The press exists as an institution to protect and strengthen republicanism, resting on the idea that human beings and public institutions must be made good, or, as we say today, made responsible. But the press can also exceed its limits, becoming over-powerful and therefore no longer serving the interests of the society that hosts it. Franklin’s solutions to the problems created by the press are partly comical, both because they are exaggerated and because relatively little, it seems, can be done about the effectual truth of this principle.

To some degree, the conservative oppositional press begun a few generations ago has addressed what is among the worst diseases of a republic: the centralization of the press. As Tocqueville observes:

When a large number of organs of the press come to advance along the same track, their influence becomes almost irresistible in the long term, and public opinion, struck always from the same side, ends by yielding under their blows.

The press’s powers (as analyzed by Franklin), combined with centralization, may be lethal to a republic. In this regard, America’s conservative oppositional press — which has no parallel anywhere else in the Western world — has greatly contributed to breaking up centralization. Yet having guided us away from the shoal of centralization, the oppositional press has created new problems.

With the help of new media technologies, the oppositional press has ushered into existence the parallel universes that American citizens now construct for themselves by choosing which press better flatters their prejudices. Alarmingly, citizens who inhabit each of these monolithic realities are more than merely at partisan ends of a political spectrum — they have become to some degree almost different kinds of beings, given the extent of their differences in sentiments, passions, habits of character, and tastes. Indeed, the new multiplicity of news sources, despite some obviously healthy effects, can create a greater and greater cacophony of similar sentiments while reducing genuine thoughtfulness. This need not, however, be our nation’s final situation.

The quality of our press will decide the fate of our civilization. We might try to follow Franklin’s general lessons in order to facilitate public discourse: bolstering citizen pride as a means of preventing the press’s excesses; diminishing the public’s resentment by ridiculing rather than flattering it; all while recalling that the press must serve republicanism rather than weaken it. For this to be possible, the press must renew its self-understanding. And the public ought to demand it. On the side of the press, this would mean a new devotion to elevating political debate — while consciously avoiding self-flattery, dogmatism, and partisan dishonesty — about important political questions facing the nation. On the side of the public, this means deepening its understanding of the stakes to the nation, and showing a new willingness to speak freely and rationally, despite the obstacles of political correctness or fear of intimidation.

Finally, lessons in moderating the press’s power and reach may be seen in Franklin’s own activity. Perhaps lampooning and parodying the press — that is, exposing it, its inferior personages, and its interests, through film, books, and on stage, as Franklin himself did — can liberate the democratic mind to some degree from its power. Also following Franklin, we see that democratic resentment — though exploited by the press — can be harnessed and directed toward useful ends. For example, resentment can despise and envy the great, or it can satisfy itself through the prosecution of corruption, both governmental and that of the press itself.

Arthur Milikh is associate director of the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics.

Did America Have a Christian Founding?

Did America Have a Christian Founding?

Mark David Hall, Ph.D.

    . . . we ignore at our peril the Founders’ insight that democracy requires a moral people and that faith is an important, if not indispensable, support for morality. Such faith may well flourish best without government support, but it should not have to flourish in the face of government hostility. – M.D. Hall, 2011

Abstract: Did America have a Christian Founding? This disputed question, far from being only of historical interest, has important implications for how we conceive of the role of religion in the American republic. Mark David Hall begins by considering two popular answers to the query—“Of course not!” and “Absolutely!”—both of which distort the Founders’ views. After showing that Christian ideas were one of the important intellectual influences on the Founders, he discusses three major areas of agreement with respect to religious liberty and church–state relations at the time of the Founding: Religious liberty is a right and must be protected; the national government should not create an established church, and states should have them only if they encourage and assist Christianity; and religion belongs in the public square. In short, while America did not have a Christian Founding in the sense of creating a theocracy, its Founding was deeply shaped by Christian moral truths. More important, it created a regime that was hospitable to Christians, but also to practitioners of other religions.

The role of religion in the American republic has been a source of controversy since the nation’s inception. Debates are particularly fierce when they concern religious liberty and the proper relationship between church and state. Arguments on these questions are often framed in the light of the Founders’ intentions, but unfortunately, their views are often distorted.

Did America have a Christian Founding? Two popular answers to this query—“Of course not!” and “Absolutely!”—both distort the Founders’ views. There is in fact a great deal of evidence that America’s Founders were influenced by Christian ideas, and there are many ways in which the Founders’ views might inform contemporary political and legal controversies.

Two Common but Mistaken Answers

According to those who answer “Of course not!” America’s Founders were guided by secular ideas and self, class, or state interests. These scholars do not deny that the Founders were religious, but they contend that they were mostly deists—i.e., persons who reject many Christian doctrines and who think God does not interfere in the affairs of men and nations.

For instance, historian Frank Lambert writes that “[the] significance of the Enlightenment and Deism for the birth of the American republic, and especially the relationship between church and state within it, can hardly be overstated.” Similarly, University of Chicago law professor Geoffrey Stone avers that “deistic beliefs played a central role in the framing of the American republic” and that the “Founding generation viewed religion, and particularly religion’s relation to government, through an Enlightenment lens that was deeply skeptical of orthodox Christianity.” Virtually identical claims are made by Edwin Gaustad, Steven Waldman, Richard Hughes, Steven Keillor, David Holmes, Brooke Allen, and many others.[1]

In addition to asserting that the Founders were deists, these authors regularly contend that they abandoned their ancestors’ intolerant approach to church–state relations and embraced religious liberty. They often concede that some Founders thought civic authorities should support religion but argue that this is irrelevant as Jefferson’s and Madison’s conviction that there should be a high wall of separation between church and state was written into the Constitution and reinforced by the First Amendment. As we shall see, there are significant problems with this story.

The second answer to this question is offered by popular Christian writers such as Peter Marshall, David Manuel, John Eidsmoe, Tim LaHaye, William J. Federer, David Barton, and Gary DeMar. They contend that not only did America have a Christian Founding, but virtually all of the Founders were devout, orthodox Christians who consciously drew from their religious convictions to answer most political questions.

To support their case, these writers are fond of finding religious quotations from the Founders. The rule seems to be that if a Founder utters anything religious, at any time in his life, he counts as an orthodox or even evangelical Christian Founder. Using this methodology, Tim LaHaye concludes, for instance, that John Adams was “deeply committed to Jesus Christ and the use of Biblical principles in governing the nation,” and George Washington, if he was alive today, “would freely associate with the Bible-believing branch of evangelical Christianity that is having such a positive influence upon our nation.”[2] This approach leads to similarly bad history.

What Exactly Would a Christian Founding Look Like?

In order to answer the question “Did America have a Christian Founding?” properly, we must first understand it. Let us begin by considering what, exactly, would constitute a Christian Founding?

One possibility is simply that the Founders identified themselves as Christians. Clearly, they did. In 1776, every European American, with the exception of about 2,500 Jews, identified himself or herself as a Christian. Moreover, approximately 98 percent of the colonists were Protestants, with the remaining 1.9 percent being Roman Catholics.[3]

But this reality is not particularly interesting. These men and women might have been bad Christians, they may have been Christians significantly influenced by non-Christian ideas, or they may even have been Christians self-consciously attempting to create a secular political order.

Second, we might mean that the Founders were all sincere Christians. Yet sincerity is very difficult for the scholars, or anyone else, to judge. In most cases, the historical record gives us little with which to work. And even if we can determine, say, that a particular Founder was a member, regular attendee, and even officer in a church, it does not necessarily mean he was a sincere Christian. Perhaps he did these things simply because society expected it of him.

Third, we might mean that the Founders were orthodox Christians. In some cases—for example, Samuel Adams, Patrick Henry, John Jay, Roger Sherman, and John Witherspoon—there is abundant evidence that these Founders embraced and articulated orthodox Christian ideas. But the lack of records often makes it difficult to speak with confidence on this issue.

Nevertheless, in light of the many and powerful claims that the Founders were deists, it should be noted that there is virtually no evidence that more than a handful of civic leaders in the Founding era—notably Benjamin Franklin, Ethan Allen, Thomas Jefferson, John Adams, and (if we count him as an American) Tom Paine—embraced anything approximating this view. Moreover, a good argument can be made that even these Founders were influenced by Christianity in significant ways—and it certainly does not follow that they desired the strict separation of church and state.[4]

A fourth possibility is that the Founders acted as Christians in their private and/or public lives. Some historians have argued that the Founding cannot be called Christian because some Founders did not join churches, take communion, or remain faithful to their spouses. Moreover, in their public capacity, they did not act in a Christian manner because they did things such as fight an unjust war against England and did not immediately abolish slavery.[5]

In some cases, these critiques do not take into account historical context, such as the difficulty of joining Calvinist churches in 18th century America. In others, they neglect the traditional Christian teaching that even saints sin. If the standard of being a Christian is moral perfection, no one has ever been a Christian. Most egregious, it is profoundly unhistorical to judge the Founders by specific policy outcomes that seem perfectly clear to 21st century Christians.

This is not to say that biblical principles are relativistic, but their applications to specific issues in particular times and places may vary or be unclear. To take a contemporary example, one should be very careful in saying, for instance, that someone is a good Christian politician only if she votes for (or against) tax cuts or national health care.

A final possibility is that the Founders were influenced by Christian ideas. Scholars have spent a great amount of time attempting to discern influence. Book after book has been written about whether the Founders were most influenced by Lockean liberalism, classical republicanism, the Scottish Enlightenment, etc.

I believe that this is the most reasonable way to approach the question “Did America have a Christian Founding?” In doing so, it is important to note that nominal Christians might be influenced by Christian ideas, just as it is possible for an orthodox Christian to be influenced by non-Christian ideas. I believe that an excellent case can be made that Christianity had a profound influence on the Founders.[6]

Before proceeding, I should emphasize that I am not arguing that Christianity was the only significant influence on America’s Founders or that it influenced each Founder in the exact same manner. Clearly there were a variety of different, but often overlapping, intellectual influences in the era.[7] The Founders were also informed by the Anglo–American political–legal tradition and their own political experience, and like all humans, they were motivated to varying degrees by self, class, or state interests. My contention is merely that orthodox Christianity had a very significant influence on America’s Founders and that this influence is often overlooked by students of the American Founding.

What Constitutes America’s Founding?

I have assumed here that America was founded in the late 18th century, but some authors have argued, in the words of Gary DeMar, that our “nation begins not in 1776, but more than one hundred fifty years earlier.”[8] Let us consider three major possibilities that might count as the country’s founding: (1) the establishment of colonial governments in the 17th century, (2) America’s break with Great Britain in the 1770s, and (3) the creation of a new constitutional order in the 1780s and 1790s.

  1. America’s Colonial Origins

Few doubt that Puritans were serious Christians attempting to create, in the words of Massachusetts Governor John Winthrop, “a shining city upon a hill” (a reference to Matthew 5:14). Puritans separated church and state, but they clearly thought the two institutions should work in tandem to support, protect, and promote true Christianity.

Other colonies, however, are often described as being significantly different from those in New England. Historian John Fea, for instance, contends that “the real appeal of Jamestown was economic opportunity and the very real possibility of striking it rich.”[9] It is certainly the case that colonists were attracted to the New World by economic opportunity (in New England as well as in the South), and yet even in the southern colonies the protection and promotion of Christianity was more important than many authors assume. For instance, Virginia’s 1610 legal code begins:

Whereas his Majesty, like himself a most zealous prince, has in his own realms a principal care of true religion and reverence to God and has always strictly commanded his generals and governors, with all his forces wheresoever, to let their ways be, like his ends, for the glory of God….

The first three articles of this text go on to state that the colonists have embarked on a “sacred cause,” to mandate regular church attendance, and to proclaim that anyone who speaks impiously against the Trinity or who blasphemes God’s name will be put to death.[10]

Early colonial laws and constitutions such as the Mayflower Compact, the Fundamental Orders of Connecticut, and Massachusetts Body of Liberties are filled with such language—and in some cases, they incorporate biblical texts wholesale. Perhaps more surprisingly, tolerant, Quaker Pennsylvania was more similar to Puritan New England than many realize. The Charter of Liberties and Frame of Government of the Province of Pennsylvania (1681) begins by making it clear that God has ordained government, and it even quotes Romans 13 to this effect. Article 38 of the document lists “offenses against God” that may be punished by the magistrate, including:

swearing, cursing, lying, profane talking, drunkenness, drinking of healths, obscene words, incest, sodomy…stage-plays, cards, dice, May-games, gamesters, masques, revels, bull-baiting, cock-fighting, bear-baiting, and the like, which excite the people to rudeness, cruelty, looseness, and irreligion….[11]

An extensive survey of early colonial constitutions and laws reveals many similar provisions. As well, at least nine of the 13 colonies had established churches, and all required officeholders to be Christians—or, in some cases, Protestants. Quaker Pennsylvania, for instance, expected officeholders to be “such as possess faith in Jesus Christ.”[12]

If one is to understand the story of the United States of America, it is important to have a proper appreciation for its Christian colonial roots. By almost any measure, colonists of European descent who settled in the New World were serious Christians whose constitutions, laws, and practices reflected the influence of Christianity. Although some authors refer to this “planting” as a “founding,” such a designation is rare among scholars. Instead, most scholars consider America to have been founded in the late 18th century around one of, or some combination of, two major events: the War for Independence and the creation of America’s constitutional order.

  1. The War for Independence

On the surface, the War for American Independence appears to be an inherently un-Christian event. The Apostle Paul, in Romans 13, seems to leave little room for revolution: “Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained by God. Whosoever therefore resists the power, resists the ordinance of God: and they that resist shall receive to themselves damnation.”

Historically, Christian thinkers have taken this and similar biblical passages to prohibit rebellion against civic authorities. However, in the 12th century, some Christian scholars began to allow for the possibility that inferior magistrates might overthrow evil kings. These ideas were developed and significantly expanded by the Protestant Reformers. John Calvin, the most politically conservative of these men, contended that, in some cases, inferior magistrates might resist an ungodly ruler. However, Reformed leaders such as John Knox, George Buchanan, and Samuel Rutherford of Scotland, Stephanus Junius Brutus and Theodore Beza of France, and Christopher Goodman and John Ponet of England argued that inferior magistrates must resist unjust rulers and even permitted or required citizens to do so.

It is worth noting that all of these men wrote before Locke published his Two Treatises of Government and that this tradition was profoundly influential in America. Indeed, between 55 percent and 75 percent of white citizens in this era associated themselves with Calvinist churches, and members of the tradition were significantly overrepresented among American intellectual elites.[13]

The influence of the Reformed political tradition in the Founding era is manifested in a variety of ways, but particularly noteworthy is the almost unanimous support Calvinist clergy offered to American patriots. This was noticed by the other side, as suggested by the Loyalist Peter Oliver, who railed against the “black Regiment, the dissenting Clergy, who took so active a part in the Rebellion.” King George himself reportedly referred to the War for Independence as “a Presbyterian Rebellion.” From the English perspective, British Major Harry Rooke was largely correct when he confiscated a presumably Calvinist book from an American prisoner and remarked that “[i]t is your G-d Damned Religion of this Country that ruins the Country; Damn your religion.”[14]

The Declaration of Independence, the most famous document produced by the Continental Congress during the War for Independence, proclaims: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.” As well, this text references “the laws of nature and of nature’s God” and closes by “appealing to the Supreme Judge of the world” and noting the signers’ “reliance on the protection of divine Providence.” The Founders’ use of Christian rhetoric and arguments becomes even more evident if one looks at other statements of colonial rights and concerns such as the Suffolk Resolves, the Declaration of Rights, and the Declaration of the Causes and Necessity of Taking up Arms—to say nothing of the dozen explicitly Christian calls for prayer, fasting, and thanksgiving issued by the Continental and Confederation Congresses.[15]

Some scholars have argued that the use of “distant” words for God or “vague and generic God-language” like “Nature’s God,” Creator,” and “Providence” in the Declaration and other texts is evidence that the Founders were deists.[16] However, indisputably orthodox Christians regularly used such appellations.

For instance, the Westminster Standards (a classic Reformed confession of faith), both in the original 1647 version and in the 1788 American revision, refer to the deity as “the Supreme Judge,” “the great Creator of all things,” “the first cause,” “righteous judge,” “God the Creator,” and “the supreme Law and King of all the world.” The Standards also regularly reference God’s providence and even proclaim that “[t]he light of nature showeth that there is a God….” Similarly, Isaac Watts, the “father of English Hymnody,” referred to the deity as “nature’s God” in a poem about Psalm 148: 10. Jeffry H. Morrison has argued persuasively that the Declaration’s references to “‘divine Providence’ and ‘the Supreme Judge of the World’ would have been quite acceptable to Reformed Americans in 1776, and conjured up images of the ‘distinctly biblical God’ when they heard or read the Declaration.”[17]

It may be objected that Jefferson, the man who drafted the Declaration, was hardly an orthodox Christian, and that is certainly the case. But this is beside the point. As Jefferson himself pointed out in an 1825 letter, the object of the document was not to “find out new principles, or new arguments…. [I]t was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.…”[18] Even though Jefferson believed in a vague, distant deity, when his fellow delegates revised and approved the Declaration, virtually all of them understood “Nature’s God,” “Creator,” and “Providence” to refer to the God of Abraham, Isaac, and Jacob: a God who is active in the affairs of men and nations.

  1. The Creation of America’s Constitutional Order

In light of the above discussion, it is perhaps surprising that the Constitution says little about God or religion. Of course, there are hints that America is a Christian nation (e.g., a pocket veto occurs 10 days after a bill is passed by Congress, Sundays excepted), but these seem to be more than balanced by Article VI’s prohibition of religious tests for federal offices. The only specific mention of God is found in the date the Constitution was written: “in the Year of our Lord 1787.”

What is going on? Some have argued that America began as a Christian country but that the authors of the Constitution recognized that this was not a good thing, and so they created, in the words of Isaac Kramnick and R. Laurence Moore, a “Godless Constitution.” To reinforce this point, the Founders added the First Amendment to the Constitution, which begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”[19]

On the surface, this is a plausible hypothesis, and a few Founding-era documents such as James Madison’s “Memorial and Remonstrance” (1785) and Thomas Jefferson’s letter to the Danbury Baptists (1802) seem to offer some support for this view. As we shall see, this interpretation of the Founding is inaccurate even with respect to Jefferson and Madison, and if one looks beyond them to the hundreds of men who attended the Federal Convention of 1787, participated in the state ratification conventions, and were elected to the first federal Congress, it becomes completely implausible. These individuals, without exception, called themselves Christians, and a good case can be made that many were influenced by orthodox Christian ideas in important ways.

This argument is made well in broad strokes by Barry Alan Shain in The Myth of American Individualism: The Protestant Origins of American Political Thought. It also receives interesting empirical support from Donald Lutz, who examined 15,000 pamphlets, articles, and books on political subjects published in the late 18th century. His study found that the Bible was cited far more often than any other book, article, or pamphlet. In fact, the Founders referenced the Bible more than all Enlightenment authors combined.[20]

If Shain and Lutz make the argument for Christian influence in broad strokes, others have made it in finer strokes through studies of individual Founders. For instance, I have co-edited four books that collectively shine light on 26 different Founders and several major traditions. These books, along with a number of other articles and books on less famous Founders, demonstrate that there is little evidence that the Founders as a group were deists who desired the separation of church and state.[21]

Before discussing the positive influence of Christian ideas on the American Founders, let me briefly suggest the central reason why the Constitution appears to be “Godless.” Simply put, the Founders were creating a national government for a very few limited purposes—notably those enumerated in Article I, Section 8. There was almost universal agreement that if there was to be legislation on religious or moral matters, it should be done by state and local governments.[22]

In fact, states remained active in this business well into the 20th century. It is true that the last state church was disestablished in 1832, but many states retained religious tests for public office, had laws aimed at restricting vice, required prayer in schools, and so forth. Because the federal government was not to be concerned with these issues, they were not addressed in the Constitution. The First Amendment merely reinforced this understanding with respect to the faith—i.e., Congress has no power to establish a national church or restrict the free exercise of religion.[23]

Even though Christianity is not mentioned in the Constitution or Bill or Rights, the Founders of the American republic were influenced by Christian ideas in significant ways. For example:

  1. Their faith taught them that humans were sinful. As James Madison wrote in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external or internal controls on government would be necessary.” This conviction led them to avoid utopian experiments such as those later pursued during the French Revolution and to adopt a constitutional system characterized by separated powers, checks and balances, and federalism. Many Enlightenment thinkers in this era, by way of contrast, tended to favor a strong, centralized government run by experts.[24]
  2. They firmly believed that God ordained moral standards, that legislation should be made in accordance with these standards, and that moral laws took precedence over human laws. This conviction manifests itself in their abstract reflections (e.g., James Wilson’s law lectures, parts of which read like St. Thomas Aquinas’s Summa Theologica) and practical decisions (e.g., all but one Supreme Court Justice prior to John Marshall argued publicly that the Court could strike down an act of Congress if it violated natural law).[25]
  3. Similarly, Christianity informed the Founders’ understanding of substantive concepts such as “liberty.” Barry Shain has identified eight different ways in which the word was used in the 18th century. Only one of these is related to the excessively individualistic way the term is often used today. Instead, the Founders were far more likely to see liberty as the freedom to do what is morally correct, as illustrated by United States Supreme Court Justice James Wilson’s marvelous dictum: “Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.”[26]
  4. America’s Founders believed that humans were created in the imago dei—the image of God. Part of what this means is that humans are reasonable beings. This led them to conclude that we the people (as opposed to the elite) can order our public lives together through politics rather than force. It also helped inform early (and later) American opposition to slavery.[27]
  5. Faith led many Founders to conclude that religious liberty should be extensively protected. Yet many also thought that civic authorities should encourage Christianity and that it is appropriate to use religious language in the public square. By the late 18th century, some Founders were beginning to question the wisdom of religious establishments, primarily because they thought that such establishments hurt true religion. The Founders’ views on these questions have the most immediate and obvious policy and legal implications, so I will address them in some detail.

The Founders on Church and State

In the 1947 Supreme Court decision of Everson v. Board of Education, Justice Wiley Rutledge proclaimed that “no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.” Like many jurists and academics since, he proceeded to argue that the Founders intended the First Amendment to create a strict separation of church and state. As evidence, he relied almost solely on statements by Thomas Jefferson and James Madison, most taken out of context and made before or well after the Religion Clauses were drafted.[28]

Yet consideration of a wide range of Founders and their public actions shows that few if any embraced anything approximating modern conceptions of the separation of church and state. Of course, they differed among themselves, but it is possible to identify three major areas of agreement with respect to religious liberty and church–state relations.

Consensus #1: Religious Liberty Is a Right and Must be Protected.

To a person, the Founders were committed to protecting religious liberty. This conviction was usually based upon the theological principle that humans have a duty to worship God as their consciences dictate. A good illustration of this is George Mason’s 1776 draft of Article XVI of Virginia’s Declaration of Rights. It reads:

That as Religion, or the Duty which we owe to our divine and omnipotent Creator, and the Manner of discharging it, can be governed only by Reason and Conviction, not by Force or Violence; and therefore that all Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate….

James Madison, in his first significant public act, objected to the use of “toleration” in the article, believing that it implied that religious liberty was a grant from the state that could be revoked at will. The Virginia Convention agreed, and Article XVI was amended to make it clear that “the free exercise of religion” is a right, not a privilege granted by the state.[29]

Mason’s draft of Article XVI was reprinted throughout the states and had an important impact on subsequent state constitutions and the national Bill of Rights. By the end of the Revolutionary era, every state offered significant protection of religious liberty. The federal Constitution of 1787 did not, but only because its supporters believed the national government did not have the delegated power to pass laws interfering with religious belief or practice. In the face of popular outcry, the first Congress proposed and the states ratified a constitutional amendment prohibiting Congress from restricting the free exercise of religion.

Scholars and jurists debate the exact scope of religious liberty protected by the First Amendment. For instance, it is unclear whether the amendment requires religious minorities to be exempted from neutral laws. (For example, does the Free Exercise Clause require Congress to exempt religious pacifists from conscription into the military?) But at a minimum, it prohibits Congress from, in the words of James Madison, compelling “men to worship God in any manner contrary to their conscience.”[30]

Consensus #2: States Should Have Established Churches Only If They Encourage and Assist Christianity.

In 1775, at least nine of the 13 colonies had established churches. Although establishments took a variety of forms, they generally entailed the state providing favorable treatment for one denomination—treatment which often included financial support. Members of religious denominations other than the official established church were usually tolerated, but they were occasionally taxed to support the state church, and some were not permitted to hold civic office.

After independence, most states either disestablished their churches (particularly states where the Church of England was previously established) or moved to a system of “plural” or “multiple” establishments. Under the latter model, citizens were taxed to support their own churches. Although a few Founders challenged establishments of any sort in the name of religious liberty, most arguments were framed in terms of which arrangement would be best for Christianity.

A good illustration of the last point may be found in two petitions from Westmoreland County that arrived at the Virginia General Assembly on the same day regarding Patrick Henry’s 1784 proposal to provide state funds to a variety of churches. The first supported Henry’s bill, arguing, much like public-sector unions today, that state subsidies are necessary to keep salaries high enough to attract the best candidates into the ministry.

Opponents of Henry’s plan disagreed, responding that assessments were against “the spirit of the Gospel,” that “the Holy Author of our Religion” did not require state support, and that Christianity was far purer before “Constantine first established Christianity by human Laws.” Rejecting their fellow petitioners’ arguments that government support was necessary to attract good candidates to the ministry, they argued that clergy should manifest:

that they are inwardly moved by the Holy Ghost to take upon them that Office, that they seek the good of Mankind and not worldly Interest. Let their doctrines be scriptural and their Lives upright. Then shall Religion (if departed) speedily return, and Deism be put to open shame, and its dreaded Consequences removed.[31]

This petition was significantly more popular than James Madison’s now-famous “Memorial and Remonstrance,” another petition written to oppose Henry’s plan. Madison’s memorial has often been referenced to shine light on the First Amendment, and it is regularly treated as a rationalist, secular argument for religious liberty. But, as in the Virginia Declaration, Madison argues that the right to religious liberty is unalienable “because what is here a right towards men, is a duty towards the Creator.” As well, he noted that “ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation” and that “the bill is adverse to the diffusion of the light of Christianity.”[32]

America’s Founders were committed to the idea that religion (by which virtually all of them meant Christianity) was necessary for public happiness and political prosperity. This view was so widespread that James Hutson has called it “the Founders’ syllogism.”[33] The key question with respect to particular establishments at the state level was whether they helped or hurt the faith.

Consensus #3: Religion Belongs in the Public Square.

In 1802, Thomas Jefferson penned a letter to the Danbury Baptist Association in which he famously suggested that the First Amendment created a “wall of separation between Church & State.” This metaphor lay dormant with respect to the Supreme Court’s Establishment Clause jurisprudence until 1947, when Justice Hugo Black seized upon it as the definitive statement of the Founders’ views on church–state relations.[34]

As appealing as the wall metaphor is to contemporary advocates of the strict separation of church and state, it obscures far more than it illuminates. Leaving aside the fact that Jefferson was in Europe when the Constitution and Bill of Rights were written, that the letter was a profoundly political document, and that Jefferson used the metaphor only once in his life, it is not even clear that it sheds useful light upon Jefferson’s views, much less those of his far more traditional colleagues.

Jefferson issued calls for prayer and fasting as governor of Virginia, and in his revision of Virginia’s statutes, he drafted bills stipulating when the governor could appoint “days of public fasting and humiliation, or thanksgiving” and to punish “Disturbers of Religious Worship and Sabbath Breakers.” As a member of the Continental Congress, he proposed that the nation adopt a seal containing the image of Moses “extending his hand over the sea, caus[ing] it to overwhelm Pharaoh,” and the motto “Rebellion to tyrants is obedience to God.” He closed his second inaugural address by encouraging all Americans to join him in seeking “the favor of that Being in whose hands we are, who led our forefathers, as Israel of old….” And two days after completing his letter to the Danbury Baptists, he attended church services in the U.S. Capitol, where he heard John Leland, the great Baptist minister and opponent of religious establishments, preach.[35]

The point is not that Jefferson was a pious man who wanted a union between church and state. His private letters make it clear that he was not an orthodox Christian, and his public arguments and actions demonstrate that he favored a stricter separation between church and state than virtually any other Founder. Yet even Jefferson, at least in his actions, did not attempt to completely remove religion from the public square, and what Jefferson did not completely exclude, most Founders embraced.

This point may be illustrated in a variety of ways, but a particularly useful exercise is to look at the first Congress, the body that crafted the First Amendment. One of Congress’s first acts was to agree to appoint and pay congressional chaplains. Shortly after doing so, it reauthorized the Northwest Ordinance, which held that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”[36]

More significantly for understanding the First Amendment, on the day after the House approved the final wording of the Bill of Rights, Elias Boudinot, later president of the American Bible Society, proposed that the President recommend a day of public thanksgiving and prayer. In response to objections that such a practice mimicked European customs or should be done by the states, Roger Sherman, according to a contemporary newspaper account:

justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in holy writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.[37]

The House agreed, as did the Senate, as did the President. The result was George Washington’s famous 1789 Thanksgiving Day Proclamation. The text of his proclamation is worth quoting at some length:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore His protection and favor…

I do recommend…the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be….

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our national government a blessing to all the People….[38]

Similar proclamations were routinely issued by Presidents Washington, Adams, and Madison. Jefferson, it is true, refused to formally issue such proclamations, yet as Daniel L. Dreisbach has pointed out, he “employed rhetoric in official utterances that, in terms of religious content, was virtually indistinguishable from the traditional thanksgiving day proclamations.”[39]

America’s Founders did not want Congress to establish a national church, and many opposed establishments at the state level as well. Yet they believed, as George Washington declared in his Farewell Address, that of “all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.”[40] Moreover, almost without exception, they agreed that civic authorities could promote and encourage Christianity and that it was appropriate for elected officials to make religious arguments in the public square. There was virtually no support for contemporary visions of a separation of church and state that would have political leaders avoid religious language and require public spaces to be stripped of religious symbols.

Conclusions

So did America have a Christian Founding? History is complicated, and we should always be suspicious of simple answers to difficult questions. As we have seen, there is precious little evidence that the Founders were deists, wanted religion excluded from the public square, or desired the strict separation of church and state. On the other hand, they identified themselves as Christians, were influenced in important ways by Christian ideas, and generally thought it appropriate for civic authorities to encourage Christianity.

What do these facts mean for Americans who embrace non-Christian faiths or no faith at all? Although the Founders were profoundly influenced by Christianity, they did not design a constitutional order only for fellow believers. They explicitly prohibited religious tests for federal offices, and they were committed to the proposition that all men and women should be free to worship God (or not) as their consciences dictate.

As evidenced by George Washington’s 1790 letter to a “Hebrew Congregation” in Newport, Rhode Island, the new nation was to be open to a wide array of individuals who were willing to assume the responsibilities of citizenship:

All [citizens] possess alike liberty and conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

…May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.[41]

Yet it does not follow from this openness that Americans should simply forget about their country’s Christian roots. Anyone interested in an accurate account of the nation’s past cannot afford to ignore the important influence of faith on many Americans, from the Puritans to the present day.

Christian ideas underlie some key tenets of America’s constitutional order. For instance, the Founders believed that humans are created in the image of God, which led them to design institutions and laws meant to protect and promote human dignity. Because they were convinced that humans are sinful, they attempted to avoid the concentration of power by framing a national government with carefully enumerated powers. As well, the Founders were committed to liberty, but they never imagined that provisions of the Bill of Rights would be used to protect licentiousness. And they clearly thought moral considerations should inform legislation.

America has drifted from these first principles. We would do well to reconsider the wisdom of these changes.

The Founders believed it permissible for the national and state governments to encourage Christianity, but this may no longer be prudential in our increasingly pluralistic country. Yet the Constitution does not mandate a secular polity, and we should be wary of jurists, politicians, and academics who would strip religion from the public square. We should certainly reject arguments that America’s Founders intended the First Amendment to prohibit neutral programs that support faith-based social service agencies, religious schools, and the like.[42]

Finally, we ignore at our peril the Founders’ insight that democracy requires a moral people and that faith is an important, if not indispensable, support for morality. Such faith may well flourish best without government support, but it should not have to flourish in the face of government hostility.

References

[1] Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, N.J.: Princeton University Press, 2003), p. 161; Geoffrey R. Stone, “The World of the Framers: A Christian Nation?” University of California Law Review, Vol. 56 (October 2008), pp. 7–8; Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (New York: Random House, 2008), p. 193; Richard T. Hughes, Myths America Lives By (Urbana: University of Illinois Press, 2003), pp. 50–57; Steven J. Keillor, This Rebellious House: American History and the Truth of Christianity (Downers Grove, Ill.: InterVarsity, 1996), p. 85; David L. Holmes, The Faiths of the Founding Fathers (New York: Oxford University Press, 2006), pp. 163–164; Brooke Allen, Moral Minority: Our Skeptical Founding Fathers (Chicago: Ivan R. Dee, 2006), p. xiii.

[2] Peter Marshall and David Manuel, The Light and the Glory (Grand Rapids, Mich.: Fleming H. Revell, 1977); John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Grand Rapids, Mich.: Baker Book House, 1987); Tim LaHaye, Faith of Our Founding Fathers (Brentwood, Tenn.: Wolgemuth & Hyatt, 1987), pp. 90, 113; William J. Federer, America’s God and Country (Coppell, Tex.: FAME Publishing, 1994); David Barton, Original Intent: The Courts, the Constitution, & Religion, 4th ed. (Aledo, Tex.: Wallbuilder Press, 2005); and Gary DeMar, America’s Christian Heritage (Nashville: Broadman & Holman, 2003).

[3] Barry A. Kosmin and Seymour P. Lachman, One Nation Under God: Religion in Contemporary American Society (New York: Harmony Books, 1993), pp. 28–29.

[4] For further discussion, see Mark David Hall, “Faith and the Founders of the American Republic: Distortion and Consensus,” in Faith and Politics: Religion in the Public Square, Proceedings of the Maryville Symposium, Vol. 3, 2010 (Maryville, Tenn.: Maryville College, 2011), pp. 55–79.

[5] See, for instance, Mark A. Noll, Nathan O. Hatch, and George M. Marsden, The Search for Christian America (Westchester, Ill.: Crossway Books, 1983), pp. 19, 53–54, 95–100.

[6] Alan Gibson provides an overview of scholarly attempts to understand the intellectual influences on America’s Founders in Interpreting the Founding: Guide to the Enduring Debates Over the Origins and Foundations of the American Republic (Lawrence: University Press of Kansas, 2006). Like many other scholars, he almost completely neglects the possibility that Christian ideas may have had an important influence in the era.

[7] I discuss ways Christian influence may have interacted with other intellectual traditions, especially Lockean liberalism, in “Vindiciae, Contra Tyrannos: The Influence of the Reformed Tradition on the American Founding,” a paper presented at the annual meeting of the American Political Science Association, Washington, D.C., September 2010. A revised version of the paper will be published as a book chapter with the same title in Daniel L. Dreisbach and Mark David Hall, ed., Faith and the Founders of the American Republic (New York: Oxford University Press, forthcoming).

[8] DeMar, America’s Christian Heritage, p. 13.

[9] John Fea, Was America Founded as a Christian Nation? (Louisville, Ky.: Westminster John Knox Press, 2011), p. 82.

[10] Daniel L. Dreisbach and Mark David Hall, The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church–State Relations in the American Founding (Indianapolis: Liberty Fund Press, 2009), p. 84. I have modernized spelling and punctuation in all quotations.

[11] Ibid., pp. 86–119.

[12] Ibid., p. 118. Rhode Island, Pennsylvania, Delaware, and New Jersey did not have established churches. New York had establishments in select counties. Most colonies had religious tests for office, and all had laws encouraging and protecting Christianity and Christian morality.

[13] Some scholars argue that Locke’s political philosophy is sharply at odds with earlier Protestant resistance literature, but I believe it is best understood as a logical extension of it. In any case, the American Founders clearly thought Locke’s ideas were compatible with orthodox Christianity. For further discussion, see Hall, “Vindiciae, Contra Tyrannos: The Influence of the Reformed Tradition on the American Founding.” An excellent example of Protestant resistance literature is Stephanus Junius Brutus, Vindiciae, Contra Tyrannos, ed. George Garnett (Cambridge: Cambridge University Press, 1994). Sydney E. Ahlstrom, A Religious History of the American People (Garden City, N.Y.: Doubleday, 1975), Vol. 1, p. 426.

[14] Douglass Adair and John A. Schutz, eds., Peter Oliver’s Origin and Progress of the American Rebellion (Stanford: Stanford University Press, 1961), p. 41; Paul Johnson, A History of the American People (New York: HarperCollins, 1997), p. 173; John Leach, “A Journal Kept by John Leach, During His Confinement by the British, In Boston Gaol, in 1775,” The New England Historical and Genealogical Register, Vol.19 (1865), p. 256.

[15] Dreisbach and Hall, Sacred Rights, p. 220. For a discussion of these and other statements of colonial concerns, see Mark David Hall, The Old Puritan and a New Nation: Roger Sherman and the Creation of the American Republic (book mss. under review), chapter 3.

[16] See, for instance, Holmes, Faiths of the Founding Fathers, pp. 47, 65; Fea, Was America Founded as a Christian Nation?, pp. 131–33, 136.

[17] Westminster Standards, 1: 10; 5: 1, 2, 6; 19: 5; 23: 1; 1: 1, 7; 5; and 21: 5. See also The Works of the Late Reverend and Learned Isaac Watts (London, 1753), Vol. 4, p. 356, and The Windham Herald,April 15, 1797, p. 4. Such examples could be multiplied almost indefinitely. Jeffry H. Morrison, “Political Theology in the Declaration of Independence,” paper delivered at a conference on the Declaration of Independence, Princeton University, April 5–6, 2002. I am grateful to Daniel L. Dreisbach for pointing me to the language of the Standards.

[18] Jefferson to Henry Lee, May 8, 1825, in Adrienne Koch and William Peden, eds., The Life and Selected Writings of Thomas Jefferson (New York: Random House, 1993), pp. 656–657.

[19] Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (New York: W.W. Norton, 1996); Dreisbach and Hall, Sacred Rights, p. 433.

[20] Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton, N.J.: Princeton University Press, 1994); Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review, Vol. 78 (March 1984), pp. 189–197.

[21] Daniel L. Dreisbach, Mark D. Hall, and Jeffry H. Morrison, The Founders on God and Government (Lanham, Md.: Rowman and Littlefield, 2004) (containing essays about George Washington, John Adams, Thomas Jefferson, James Madison, John Witherspoon, Benjamin Franklin, James Wilson, George Mason, and Daniel and Charles Carroll); Dreisbach, Hall, and Morrison, The Forgotten Founders on Religion and Public Life (Notre Dame, Ind.: University of Notre Dame Press, 2009) (containing essays about Abigail Adams, Samuel Adams, Oliver Ellsworth, Alexander Hamilton, Patrick Henry, John Jay, Thomas Paine, Edmund Randolph, Benjamin Rush, Roger Sherman, and Mercy Otis Warren); Dreisbach and Hall, Faith and the Founders of the American Republic (containing eight thematic essays and profiles of John Dickinson, Isaac Backus, John Leland, Elias Boudinot, Gouverneur Morris, and John Hancock); Dreisbach and Hall, Sacred Rights (a massive collection of primary source documents on religious liberty and church–state relations in the Founding era). See also John E. O’Connor, William Paterson: Lawyer and Statesman, 1745–1806 (New Brunswick, N.J.: Rutgers University Press, 1986), and Marc M. Arkin, “Regionalism and the Religion Clauses: The Contribution on Fisher Ames,” Buffalo Law Review, Vol.47 (Spring 1999), pp. 763–828.

[22] Even Thomas Jefferson observed: “Certainly, no power to prescribe any religious exercise, or to assume authority in religious disciple, has been delegated to the General [i.e., federal] Government. It must then rest with the States, as far as it can be in any human authority.” Thomas Jefferson to Samuel Miller, January 23, 1808, in Dreisbach and Hall, Sacred Rights, p. 531. The Founders did think legislators should take religion and morality into account when the national government is acting within its enumerated powers. See, for instance, the debates in the first Congress over the assumption of state debts and excise taxes in Documentary History of the First Federal Congress, 14 vols. (Baltimore: Johns Hopkins University Press, 1972–2004), Vol. 10, pp. 568, 581; Vol. 13, pp. 1419–1424; Vol. 14, p. 247.

[23] The U.S. Supreme Court has used the Fourteenth Amendment to apply the First Amendment to state and local governments. For a good discussion of this process and different ways the Court has interpreted the religion clauses, see Henry J. Abraham and Barbara A. Perry, Freedom and the Court: Civil Rights and Civil Liberties in the United States, 7th ed. (New York: Oxford University Press, 1998), pp. 29–91, 221–325.

[24] Barry Alan Shain, “Afterword: Revolutionary-Era Americans: Were They Enlightened or Protestant? Does it Matter?” in Dreisbach, Hall, and Morrison, The Founders on God and Government, pp. 274–277. This characterization of Enlightenment thinkers is truer for members of the Continental or Radical Enlightenment than for those associated with the British and/or Scottish Enlightenment.

[25] Kermit L. Hall and Mark David Hall, eds., Collected Works of James Wilson, 2 vols. (Indianapolis: Liberty Fund Press, 2007), pp. 498–499; Scott Douglas Gerber, ed., In Seriatim: The Early Supreme Court (New York: New York University Press, 1998).

[26] Shain, Myth of American Individualism, pp. 155–319; Hall and Hall, Collected Works of James Wilson, p. 435.

[27] For a good discussion of this issue, see Thomas S. Kidd, God of Liberty: A Religious History of the American Revolution (New York: Basic Books, 2010), pp. 131–146.

[28] Associate Justice Wiley B. Rutledge, in Everson v. Board of Education, 330 U.S. 1, 33 (1947); Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review, Vol.85 (2006), pp. 563–614.

[29] Dreisbach and Hall, Sacred Rights, p. 241.

[30] Ibid., p. 427.

[31] Ibid., pp. 307–308.

[32] Ibid., pp. 309–313.

[33] Specifically, the syllogism refers to the connection between virtue and morality, republican institutions, and religion—and by religion the Founders meant some version of Christianity. See James H. Hutson, Religion and the Founding of the American Republic (Washington: Library of Congress, 1998), p. 81.

[34] Dreisbach and Hall, Sacred Rights, pp. 528, 533–534.

[35] Ibid., pp. 251, 229, 530; Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002), pp. 21–22.

[36] Dreisbach and Hall, Sacred Rights, pp. 236–238, 441–475.

[37] Documentary History of the First Federal Congress, Vol. 11, pp. 1500–1501.

[38] Dreisbach and Hall, Sacred Rights, pp. 453–454.

[39] Ibid., pp. 215–237, 446–472, 530; Dreisbach, Thomas Jefferson and the Wall of Separation, p. 57.

[40] Dreisbach and Hall, Sacred Rights, p. 468.

[41] Ibid., p. 464. Peter Lillback and Jerry Newcombe identify nine scriptural references in this letter, including one to Micah 4:4 (“while everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid”), which was Washington’s favorite biblical passage. See Peter Lillback and Jerry Newcombe, George Washington’s Sacred Fire (Bryn Mawr, Pa.: Providence Forum Press, 2006), pp. 321–322. See also George Washington to the Society of Quakers, October 1789, Papers of George Washington: Presidential Series, Vol. 4: September 1789–January 1790, ed. W. W. Abbot (Charlottesville: University of Virginia Press, 1993), p. 266, and George Washington to the Roman Catholics of the United States of America, March 15, 1790, in Bruce Frohnen, ed., The American Republic (Indianapolis: Liberty Fund Press, 2002), pp. 70–71.

[42] Such claims were made by dissenting justices in Bowen v. Kendrick, 487 U.S. 589 (1988), and Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

Key Points

  1. While America did not have a Christian Founding in the sense of creating a theocracy, it was deeply shaped by Christian moral truths, and the Founders created a regime that was hospitable to Christians as well as to practitioners of other religions.
  2. To a person, the Founders were committed to protecting religious liberty.
  3. Moreover, almost without exception, they agreed that civic authorities could promote and encourage Christianity and that it was appropriate for elected officials to make religious arguments in the public square.
  4. There was no support among the Founders for contemporary visions of a strict separation of church and state that would have political leaders avoid religious language and require public spaces to be stripped of religious symbols.

Washington’s Response to a Congressional Request for Documents

Washington’s Response to a Congressional Request for Documents, 30 March 1796

The 1794 treaty with Great Britain negotiated by John Jay was one of the most controversial events of GW’s presidency. Opponents claimed that the treaty conceded too much to Great Britain with little benefit to the United States. It failed to address the impressment of seamen or compensation for the slaves carried off by Great Britain at the end of the Revolutionary War; it guaranteed to British fur traders access to posts within the United States, but failed to give American traders the same access to Canada; it abandoned the principle that free ships make free goods; and yet it obtained very limited access to British colonial ports for American vessels. Moreover, the treaty, by strengthening Great Britain, showed base ingratitude toward France and risked a possible war with that erstwhile ally. After the Senate approved the treaty in June 1795 (with a condition that article XII concerning trade with the West Indies be renegotiated), citizens meetings from around the country urged GW to withhold ratification.

Ultimately GW decided that while some provisions of the treaty were not favorable, its acceptance was preferable to a continuation of the disputes with Great Britain, and he ratified the treaty in August 1795.

Having failed to persuade GW to reject the treaty, opponents argued that although the Constitution placed responsibility for treaties in the president and the Senate, the House of Representatives had “a discretionary power of carrying the Treaty into effect, or refusing it their sanction” (Annals of Congress, 4th Cong., 1st sess., 427-28). The Constitution vested Congress with the power to regulate commerce, to lay taxes and duties, and to make appropriations. If, however, the Senate and the president could, by making a treaty, obligate the House to accept commercial regulations or make appropriations, then in effect, they could legislate without the sanction of the people’s representatives. Pursuant to that theory, in March 1796 Edward Livingston introduced a resolution calling on GW to provide the House with a copy of the instructions given to Jay and other documents relative to the treaty. The House extensively debated the resolution from 7 March until the resolution was agreed to on 24 March.

GW consulted with his cabinet and with Alexander Hamilton (who submitted a draft that was not used) before replying to the House. This reply categorically denied that the House has any veto over a treaty approved by the Senate and the president, and it characterized the House demand as a “dangerous precedent” that would violate the proper separation of powers within the government. GW would not comply.

The House then debated GW’s message for another 7 days. These important debates, both before the resolution’s passage and after GW’s message, are gathered in Annals of Congress, 4th Cong., 1st sess., 424-783, which can be found online at “A Century of Lawmaking For a New Nation,” hosted by the Library of Congress: http://memory.loc.gov/ammem/amlaw/lwaclink.html

_____________________________________________________________________

To the United States House of Representatives

United States March 30th 1796.

Gentlemen of the House of Representatives.

With the utmost attention, I have considered your resolution of the twenty fourth instant, requesting me to lay before your House, a copy of the instructions to the Minister of the United States, who negociated the treaty with the king of Great Britain,[1] together with the correspondence and other documents relative to that treaty, excepting such of the said papers, as any existing negociation may render improper to be disclosed.

In deliberating upon this subject, it was impossible for me to lose sight of the principle, which some have avowed in its discussion, or to avoid extending my views to the consequences, which must flow from the admission of that principle.

I trust, that no part of my conduct has ever indicated a disposition to withhold any information, which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress, as a right; and with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof; so far as the trust, delegated to me by the people of the United States, and my sense of the obligation it imposes “to preserve, protect and defend the Constitution,” will permit.[2]

The nature of foreign negociations requires caution; and their success must often depend on secrecy: and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be deemed[3] impolitic; for this might have a pernicious influence on future negociations, or produce immediate inconveniences, perhaps danger and mischief, in relation to the other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties, in the President, with the advice and consent of the Senate; the principle, on which that body was formed, confining it to a small number of members. To admit, then, a right in the House of Representatives, to demand, and to have, as a matter of course,[4]all the papers respecting a negociation with a foreign power, would be,[5] to establish a dangerous precedent.

It does not occur, that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.[6] I repeat, that I have no disposition to withhold any information, which the duty of my station will permit, or the public good will require to be disclosed;[7]and, in fact, all the papers affecting the negociation with Great Britain were laid before the Senate, when the treaty itself was communicated for their consideration and advice.

The course, which the debate has taken, on the resolution of the House, leads to some observations on the mode of making treaties under the constitution of the United States.

Having been a member of the general convention, and knowing the principles, on which, the constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government, to this moment, my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate; provided two thirds of the Senators present concur; and that every treaty so made, and promulgated, thenceforward became the law of the land. It is thus, that the treaty-making power has been understood by foreign nations; and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the constitution, every House of Representatives has heretofore acquiesced, and, until the present time, not a doubt or suspicion has appeared to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for, till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.

There is also reason to believe, that this construction agrees with the opinion entertained by the State conventions, when they were deliberating on the constitution, especially by those who objected to it;[8]because there was not required, in commercial treaties, the consent of two thirds of the whole number of the members of the Senate, instead of two thirds of the Senators present; and because, in treaties respecting territorial and certain other rights and claims, the concurrence of three fourths of the whole number of the members of both Houses, respectively, was not made necessary.[9]

It is a fact declared by the General Convention, and universally understood, that the constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known, that under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the government was invested with great powers: for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend.[10]

If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the department of State. In these journals, it will appear, that a proposition was made, “that no treaty should be binding on the United States, which was not ratified by a law”: and that the proposition was explicitly rejected.

As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not n[e]cessary to the validity of a treaty: as the treaty with Great Britain exhibits, in itself, all the objects requiring legislative provision, and on these, the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries, fixed by the constitution between the different departments, should be preserved:[11] a just regard to the constitution, and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.

Go. Washington.

 

Notes

Copy, DNA: RG 233, entry 28, Journals; copy, DLC:GW; Df, in the writing of Timothy Pickering, DLC:GW. The draft has a few minor alterations in the writing of Charles Lee. With the draft are two pages containing corrections to it by Lee and Pickering. GW docketed the correction document as “First Draft altered.” The message was published by order of the House, and it also appeared in the newspapers and in numerous unofficial broadsides.

1.At this point in Pickering’s draft, he wrote in parentheses “communicated by my message of the first instant.”[back]
2.At this point in Pickering’s draft the sentence continued with “for this is superior to all other obligations.”[back]
3.Instead of this word, Pickering’s draft used the word “extremely.”[back]
4.At this point Pickering’s draft continued with the words, “& without a specification of any object.”[back]
5.Pickering’s draft concluded this paragraph with a more detailed explication: “hazardous; & according to my view of the Constitution, repugnant to my duty. A discretion in the Executive department, when & how far to comply with such demands, is essential to the due conduct of foreign negociations. The resolution of the House now before me, contains a demand for all the papers that respect past negotiations relative to the treaty with Great Britain: while it exhibits no reason, no object, by which I may judge of the propriety of a compliance: and therefore I cannot comply, without establishing a dangerous precedent.”
The final version of this paragraph uses the language submitted on the correction document by Charles Lee, except that Lee retained Pickering’s sentence about executive discretion, placing it at the end of the paragraph, while the final version does not.[back]
6.At this point Pickering’s draft contains the following additional text: “But in the case of a treaty, if there be any grounds for an impeachment, they will probably be found in the instrument itself. If at any time a treaty should present such grounds; and it should have been so pronounced by the House of Representatives; and a further enquiry should be necessary to discover the culpable person, or the degree of his offence; there being then a declared and ascertained object; I should deem it to be the duty of the President to furnish all the evidence which could be derived from the papers in his possession. Or if information to any other point should be judged necessary, and that point were specified, the President would know what communications it would be proper to make.”[back]
7.The remainder of this sentence does not appear in Pickering’s initial draft, but the addition was suggested in one of his corrections.[back]
8.Instead of the preceding text, Pickering wrote in his draft, “It is the construction which perfectly agrees with the numerous declarations of the framers of the constitution, in the several State Conventions, when these were deliberating on its adoption; and with the opinions of the Conventions themselves, some of whom objected to the Constitution.”[back]
9.Pickering’s draft adds at this point “for such were the amendments proposed in some Conventions to this part of the Constitution.”[back]
10.The preceding sentence was phrased quite differently in Pickering’s initial draft, but the content was essentially the same. The final language was taken from one of Pickering’s corrections to the draft.[back]
11.The preceding part of this paragraph alters the phrasing but not the meaning of Pickering’s original draft. It follows the language suggested in one of Pickering’s corrections but omits two clauses that were placed after “no light” in that correction: “As the resolution of the House assigns no reason for the call: As the papers respecting the negociation of treaties ordinarily pertain only to the President & Senate, by whom they are made.”[back]
The remaining text of the paragraph replaces Pickering’s initial conclusion, which read: “and as no object for the call is expressed in the Resolution of the House: I feel the obligation I am under, to preserve the Constitution in its purity, too strongly to yield to your request.” Lee wrote on the draft an alternative: “it becomes impossible for me to comply with your request.” Pickering’s correction offered a third unused alternative: “A sense of duty compels me to withhold the papers which are the subject of your request.”

 

statistics on crime

The Great Racial Disconnect on Police

Ben Shapiro

August 22, 2014

     On Monday, Rasmussen released a poll of Americans regarding the guilt or innocence of Officer Darren Wilson, the police officer who shot unarmed 18-year-old black man Michael Brown six times in Ferguson, Missouri. Those polls show that 57 percent of black adults think that Wilson should be found guilty of murder; 56 percent of whites, by contrast, are undecided on the matter.

     The latter position is the correct one. Witnesses, including one Dorian Johnson, claim that Brown was pulled over by Wilson, attacked by him and pulled into the car, ran, stopped when told to freeze by Wilson, held up his hands, and was then shot. Other witnesses — more than a dozen of them, according to local media — say that Brown attacked Wilson, went for Wilson’s gun, fled before being told to stop, then charged Wilson before being shot.

     Here’s what we do know: Despite original media reports labeling Brown a “gentle giant,” Brown and shooting witness Dorian Johnson did participate in a strong-arm robbery of a local convenience store. We know that despite original witness reports suggesting that Brown was shot in the back, he was not. We know that contemporaneous witness accounts caught on tape suggest that Brown charged at Wilson. And we know that a young black man is dead with six bullets in him at the hands of a white cop.

     And to huge segments of the black community, that last fact is the only one that matters. The full facts do not matter to extremists in the black community and to their white leftist enablers, particularly in the media. A full 41 percent of black Americans believe that riots and looting represent “legitimate outrage.” Not protesting — riots and looting. Just 35 percent of blacks think that looters and rioters are criminals taking advantage of the situation.

     There is a pattern here: a widespread belief in the black community that the justice system is rigged against them. That belief is not without basis — there is no question that America has a history of racism within the criminal justice community. By the same token, there is also no question that American law enforcement is the least racist it has ever been, by a long shot, and that racism within the law enforcement community is broadly considered unacceptable and vile.

     But the belief in a racist justice system seems to have maintained its stranglehold inside the black community. That belief, taken to its extreme, means support for black criminality. It is no coincidence that during the O.J. Simpson trial, 60 percent of black Americans did not believe O.J. was guilty. It is also no coincidence that many white Americans perceive black support for murderers like O.J. Simpson and riots in Ferguson as support for lawlessness, and therefore pooh-pooh charges of police racism. When crying racism becomes crying wolf, it is hard to take such charges seriously.

     The solution, however, lays neither in knee-jerk accusations of racism from the black community nor in immediate dismissals of individual accusations by the white community. It lies in continued targeting and prosecution of individual racists in the police community, of course — and far more importantly, it lies in less criminality within the black community. The high levels of crime in the black community contribute to heavier policing, which in turn reinforces perceptions of racial targeting; those perceptions then create resentment against police than ends too often in violent encounters and failure to report crime. And so the cycle starts anew.

     It’s time to break the cycle. The only way to do that is to focus on the fact that police have no excuse to shoot anyone unless those people are committing criminal acts. On that we can all agree. Yes, we must arduously insist that police hold to that standard, and we must prosecute those who do not to the fullest extent of the law. But by the same token, we must insist that criminal acts stop — and to do that, we must move beyond simple anti-police sentiment.

     Ben Shapiro, 30, is a graduate of UCLA and Harvard Law School, a radio host on KTTH 770 Seattle and KRLA 870 Los Angeles, Editor-in-Chief of TruthRevolt.org, and Senior Editor-at-Large of Breitbart News. He is the New York Times bestselling author of “Bullies.” His latest book, “The People vs. Barack Obama: The Criminal Case Against the Obama Administration,” will be released on June 10. He lives with his wife and daughter in Los Angeles.

ColorOfCrime 2005

Major Findings from The Color of Crime 2005

  • Police and the justice system are not biased against minorities.

Crime Rates

  • Blacks are seven times more likely than people of other races to commit murder, and eight times more likely to commit robbery.
  • When blacks commit crimes of violence, they are nearly three times more likely than non-blacks to use a gun, and more than twice as likely to use a knife.
  • Hispanics commit violent crimes at roughly three times the white rate, and Asians commit violent crimes at about one quarter the white rate.
  • The single best indicator of violent crime levels in an area is the percentage of the population that is black and Hispanic.

Interracial Crime

  • Of the nearly 770,000 violent interracial crimes committed every year involving blacks and whites, blacks commit 85 percent and whites commit 15 percent.
  • Blacks commit more violent crime against whites than against blacks. Forty-five percent of their victims are white, 43 percent are black, and 10 percent are Hispanic. When whites commit violent crime, only three percent of their victims are black.
  • Blacks are an estimated 39 times more likely to commit a violent crime against a white than vice versa, and 136 times more likely to commit robbery.
  • Blacks are 2.25 times more likely to commit officially-designated hate crimes against whites than vice versa.

Gangs

  • Only 10 percent of youth gang members are white.
  • Hispanics are 19 times more likely than whites to be members of youth gangs. Blacks are 15 times more likely, and Asians are nine times more likely.

Incarceration

  • Between 1980 and 2003 the US incarceration rate more than tripled, from 139 to 482 per 100,000, and the number of prisoners increased from 320,000 to 1.39 million.
  • Blacks are seven times more likely to be in prison than whites. Hispanics are three times more likely.

Fighting Crime Where the Criminals Are

HEATHER Mac DONALD
June 25, 2010

     THERE was a predictable chorus of criticism from civil rights groups last month when the New York Police Department released its data on stop-and-frisk interactions for 2009. The department made 575,000 pedestrian stops last year. Fifty-five percent involved blacks, even though blacks are only 23 percent of the city’s population. Whites, by contrast, were involved in 10 percent of all stops, though they make up 35 percent of the city’s population.

     According to the department’s critics, that imbalance in stop rates results from officers’ racial bias. The use of these stops, they say, should be sharply curtailed, if not eliminated entirely, and some activists are suing the department to achieve that end.

     Allegations of racial bias, however, ignore the most important factor governing the Police Department’s operations: crime. Trends in criminal acts, not census data, drive everything that the department does, thanks to the statistics-based managerial revolution known as CompStat. Given the patterns of crime in New York, it is inevitable that stop rates will not mirror the city’s ethnic and racial breakdown.

     CompStat embodies the iconoclastic idea that the police can stop violence before it happens. The department analyzes victim reports daily, and deploys additional manpower to the places where crime is increasing. Once at a crime hot spot, officers are expected to look out for, and respond to, suspicious behavior.

     Such stops happen more frequently in minority neighborhoods because that is where the vast majority of violent crime occurs — and thus where police presence is most intense. Based on reports filed by victims, blacks committed 66 percent of all violent crime in New York in 2009, including 80 percent of shootings and 71 percent of robberies. Blacks and Hispanics together accounted for 98 percent of reported gun assaults. And the vast majority of the victims of violent crime were also members of minority groups.

     Non-Hispanic whites, on the other hand, committed 5 percent of the city’s violent crimes in 2009, 1.4 percent of all shootings and less than 5 percent of all robberies.

     Given these facts, the Police Department cannot direct its resources where they are most needed without generating racially disproportionate stop data, even though the department’s tactics themselves are colorblind. The per capita rate of shootings in the 73rd Precinct — which covers Brooklyn’s largely black Ocean Hill and Brownsville neighborhoods — is 81 times higher than in the 68th Precinct in largely white Bay Ridge. Not surprisingly, the per capita stop rate in the 73rd Precinct is 15 times higher than that in the 68th.

    Crime rates are not the only thing that drives police strategy — so do requests for assistance from communities besieged by lawlessness. If residents of an apartment building ask their precinct commander to eliminate the drug dealing on their street, officers will likely question people hanging out around the building and step up their enforcement of quality-of-life laws, resulting in more stops. Requests for crackdowns on street sales come far more frequently from minority neighborhoods, because that is where most open-air drug dealing occurs.

     Some critics charge that the more than half a million stops last year indicate that the department is out of control. But the ratios of stops to population and of stops to total arrests in New York are very close to those in Los Angeles, where last summer a judge lifted a federal consent decree under which the police department had operated for the last eight years. The police stop data in Los Angeles are as racially disproportionate as New York’s, yet the judge deemed them consistent with civil rights.

     For several years, the ratio of stops in New York that resulted in an arrest or summons — about 12 percent of the total — was identical for whites, blacks and Hispanics, suggesting that the police use the same measure of reasonable suspicion in stopping members of different racial and ethnic groups. Just because a stop does not result in an arrest or summons does not mean that it did not interrupt a crime. Someone who is casing a victim or acting as a lookout may not have inculpatory evidence on him on which to base an arrest.

     No public policy change of the last quarter-century has done as much for the city’s poor and minority neighborhoods as CompStat policing. More than 10,000 black and Hispanic males are alive today who would have been killed had homicide rates remained at the levels of the early 1990s.

     Most minority-group members in the city recognize the enormous benefit from CompStat policing. A poll released last month by Quinnipiac University found that 68 percent of black respondents approve of the job Police Commissioner Raymond Kelly is doing, suggesting that the city’s civil rights activists do not speak for their purported beneficiaries on this issue.

     The attack on the Police Department’s stop-and-frisk data is based on the false premise that police activity should mirror census data, not crime. If the critics get their way, it would strip police protection from the New Yorkers who need it most.

Heather Mac Donald is a fellow at the Manhattan Institute and the author of “Are Cops Racist?”

Blacks Suffer Disproportionate Share of Firearm Homicide Deaths

     Blacks were 55% of shooting homicide victims in 2010, but 13% of the population.

     In 2010, there were 31,672 deaths in the U.S. from firearm injuries, mainly through suicide (19,392) and homicide (11,078), according to CDC compilation of data from death certificates.

     Among racial and ethnic groups, blacks are over-represented among gun homicide victims; blacks were 55% of shooting homicide victims in 2010, but 13% of the population.

     By contrast, whites are underrepresented; whites were 25% of the victims of gun homicide in 2010, but 65% of the population. For Hispanics, the 17% share of gun homicide victims was about equal to their 16% proportion of the total population.

     The black homicide death rate has declined 50% since its peak in 1993, and the number of black homicide deaths fell by more than a third (37%) from 1993 to 2010. The white homicide death rate has declined by 42% over that time, and the number of white homicide deaths declined 39%. The Hispanic shooting homicide rate fell 69% from 1993 to 2000, and the number of deaths declined by 40%.

SDT-2013-05-gun-crime

     From 2000 to 2010, when the overall gun homicide rate decline slowed, the Hispanic rate fell 32%, while the black and white rates declined only 4%.

Putin’s Secret Weapon – GRU

Putin’s Secret Weapon

Russia’s swashbuckling military intelligence unit is full of assassins, arms dealers, and bandits. And what they pulled off in Ukraine was just the beginning.

by Mark Galeotti

Mark Galeotti is professor of global affairs at New York University’s Center for Global Affairs and is currently researching in Moscow.

JULY 7, 2014

GRU

 

 

 

There are two ways an espionage agency can prove its worth to the government it serves. Either it can be truly useful (think: locating a most-wanted terrorist), or it canengender fear, dislike, and vilification from its rivals(think: being named a major threat in congressional testimony). But when a spy agency does both, its worth is beyond question.

Since the Ukraine crisis began, the Kremlin has few doubts about the importance of the GRU, Russia’s military intelligence apparatus. The agency has not only demonstrated how the Kremlin can employ it as an important foreign-policy tool, by ripping a country apart with just a handful of agents and a lot of guns. The GRU has also shown the rest of the world how Russia expects to fight its future wars: with a mix of stealth, deniability, subversion, and surgical violence.Even as GRU-backed rebel groups in eastern Ukraine lose ground in the face of Kiev’s advancing forces, the geopolitical landscape has changed. The GRU is back in the global spook game and with a new playbook that will be a challenge for the West for years to come.

Recent years had not been kind to the Main Intelligence Directorate of the General Staff, the Glavnoe razvedyvatelnoe upravlenie (GRU). Once, it had been arguably Russia’s largest intelligence agency, with self-contained stations — known as “residencies” — in embassies around the world, extensive networks of undercover agents, and nine brigades of special forces known as Spetsnaz.

By the start of 2013, the GRU was on the ropes. Since 1992, the agency had been in charge of operations in the post-Soviet countries, Russia’s “near abroad.” But Russian President Vladimir Putin appears to have seen it as increasingly unfit for that purpose. When the Federal Security Service (FSB), Russia’s domestic security agency, was allowed to run operations abroad openly in 2003, one insider told me that this was because “the GRU doesn’t seem to know how to do anything in our neighborhood except count tanks.” (It may not even have done that very well. Putin regarded the GRU as partly responsible for Russia’s lackluster performance in the 2008 invasion of Georgia.) There was a prevailing view in Moscow that the GRU’s focus on gung-ho “kinetic operations” like paramilitary hit squads seemed less relevant in an age of cyberwar and oil politics.

Political missteps also contributed to the GRU’s diminished role. Valentin Korabelnikov, the agency’s chieffrom 1997 to 2009,seemed more comfortable accompanying Spetsnaz assassination teams in Chechnya than playing palace politics in Moscow. His criticisms of Putin’smilitary reforms put him on the Kremlin’s bad side too. Korabelnikov was sacked in 2009 and replaced with soon-to-be-retired Col. Gen. Alexander Shlyakhturov, who, within two years, was rarely seen in the GRU’s headquarters due to his bad health. In December 2011 the GRU welcomed its third head in nearly three years, Maj. Gen. Igor Sergun, a former attaché and intelligence officer with no combat experience and the lowest-ranking head of the service in decades. By the end of 2013, the Kremlin seemed to be entertaining the suggestion that the agency be demoted from a “main directorate” to a mere directorate, which would have been a massive blow to the service’s prestige and political access.

In many ways, a demotion for the GRU seemed inevitable. Since 2008, the GRU had suffered a savage round of cuts during a period when most of Russia’s security and intelligence agencies’ budgets enjoyed steady increases. Eighty of its hundred general-rank officers had been sacked, retired, or transferred. Most of the Spetsnaz were reassigned to the regular army. Residencies were downsized, sometimes even to a single officer working undercover as a military attaché.

What a difference a few months can make. What the Kremlin had once seen as the GRU’s limitations — a focus on the “near abroad,” a concentration onviolence over subtlety, a more swashbuckling style (including a willingness to conduct assassinations abroad) — have become assets.

The near-bloodless seizure of Crimea in March was based on plans drawn up by the General Staff’s Main Operations Directorate that relied heavily on GRU intelligence. The GRU had comprehensively surveyed the region, was watching Ukrainian forces based there, and was listening to their communications. The GRU didn’t only provide cover for the “little green men” who moved so quickly to seize strategic points on the peninsula before revealing themselves to be Russian troops. Many of those operatives were current or former GRU Spetsnaz.

There is an increasing body of evidence that the so-called defense minister of the separatist Donetsk People’s Republic, Igor Strelkov, whose real name is Igor Girkin, is a serving or reserve GRU officer, who likely takes at the very least guidance, if not orders, from the agency’s headquarters. As a result, the European Union has identified him as GRU “staff” and has placed him on its sanctions list. Although the bulk of the insurgents in eastern Ukraine appear to be Ukrainians or Russian “war tourists” — encouraged, armed, and facilitated by Moscow — there also appear to be GRU operators on the groundhelping to bring guns and people across the border.

It was only when the Vostok Battalion appeared in eastern Ukraine at the end of May that the GRU’s full re-emergence became clear. This separatist group bears the same name as a GRU-sponsored Chechen unit that was disbanded in 2008. This new brigade — composed largely of the same fighters from Chechnya — seemed to spring from nowhere, uniformly armed and mounted in armored personnel carriers. Its first act was to seize the administration building in Donetsk, turfing out the motley insurgents who had made it their headquarters. Having established its credentials as the biggest dog in the pack, Vostok began recruiting Ukrainian volunteers to make up for Chechens who quietly drifted home.

Alexander Khodakovsky, a defector from the Security Service of Ukraine, subsequently announced that he was the battalion’s commander. But this only happened a few days after the seizure of the Donetsk headquarters. The implication is that the battalion was originally commanded by GRU representatives. Vostok appears intended not so much to fight the regular Ukrainian forces — though it has — but rather to serve as a skilled and disciplined enforcer of Moscow’s authority over the militias if need be.

The Vostok Battalion makes Moscow’s strategy clear: The Kremlin has no desire for outright military conflict in its neighbors. Instead, the kind of “non-linear war” being waged in Ukraine, which blends outright force, misinformation, political and economic pressure, and covert operations, will likely be its means of choice in the future. These are the kinds of operations in which the GRU excels.

After all, while Moscow is not going to abandon its claims to being a global power, in the immediate future Russia’s foreign-policy focus will clearly be building and maintaining its hegemony in Eurasia. These are also the areas where the GRU is strongest. For example, in Kazakhstan, whose Russian-heavy northern regions are a potential future target for similar political pressure through local minorities,the GRU is the lead intelligence provider, as its civilian counterpart, the SVR, is technically barred from operating in Kazakhstan or any of the countries in the Commonwealth of Independent States by the 1992 Alma-Ata Declaration.

The combination of these factors means that the GRU now looks far more comfortable and confident than it did a year ago. Kiev outed and expelled a naval attaché from the Russian Embassy as a GRU officer, and Sergun, the GRU’s head, made it onto the list of officials under Western sanctions. But neither of these actions has done the agency any harm. If anything, they have increased the GRU’s prestige.

Talk of downgrading the GRU’s status is conspicuously absent in Moscow circles. The agency’s restored status means it is again a player in the perennial turf wars within the Russian intelligence community. More importantly, it means that GRU operations elsewhere in the world are likely to be expanded again and to regain some of their old aggression.

The GRU’s revival also demonstrates that the doctrine of “non-linear war” is not just an ad hoc response to the particularities of Ukraine. This is how Moscow plans to drive forward its interests in today’s world. The rest of the world has not realized this now, even though Chief of the General Staff Valery Gerasimov spelled it out in an obscure Russian military journal last year. He wrote that the new way of war involves “the broad use of political, economic, informational, humanitarian, and other nonmilitary measures … supplemented by military means of a covert nature character,” not least with the use of special forces.

This kind of conflict will be fought by spies, commandos, hackers, dupes, and mercenaries — exactly the kind of operatives at the GRU’s disposal. Even after the transfer of most Spetsnaz out of the GRU’s direct chain of command, the agency still commands elite special forces trained for assassination, sabotage, and misdirection, as Ukraine shows. The GRU has also demonstrated a willingness to work with a wide range of mavericks. In Chechnya, it raised not just the Vostok Battalion but other units of defectors from guerrillas and bandits. The convicted arms dealer Viktor Bout is generally accepted to have been a part-time GRU asset too. The GRU is less picky than most intelligence agencies about who is cooperates with, which also means that it is harder to be sure who is working for them.

NATO and the West still have no effective response to this development. NATO, a military alliance built to respond to direct and overt aggression, has already found itself at a loss on how to deal with virtual attacks, such as the 2007 cyberattack on Estonia. The revival of the GRU’s fortunes promises a future in which the Cold War threat of tanks spilling across the border is replaced by a new kind of war, combining subterfuge, careful cultivation of local allies, and covert Spetsnaz strikes to achieve the Kremlin’s political aims. NATO may be stronger in strictly military terms, but if Russia can open political divisions in the West, carry out deniable operations using third-party combatants, and target strategic individuals and facilities, it doesn’t really matter who has more tanks and better fighter jets. This is exactly what the GRU is tooling up to do.

Photo by VIKTOR DRACHEV/AFP/Getty Images