Religion and the Constitution

From the considerable amount I’ve read about the early history of the United States, one of the goals of the Founding Fathers was to protect the government – and the people – from the heavy hand of religion… and to keep organized religion from infringing the rights of the people.  So, it’s with a sense of irony that I find so many religious zealots of so many types complaining essentially about what the Constitution was designed to do – to stop government from being a tool of religion.

When the Supreme Court decided in Roe v. Wade that women had a right to abortion, the Court essentially came down on the side of individual freedom, asserting that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Under the Constitution, that sort of finding is the Court’s to make, and unless Congress and the states see fit to amend the Constitution, or the Court extends, modifies, or reverses its ruling, that ruling is the law of the land.  Period.

When a state legislator proposes laws to forbid schools from teaching about birth control unless it’s abstinence and only abstinence, that legislator is attempting to restrict the freedom of information, and to determine exactly what information is to be conveyed, for religious purposes. This is particularly heinous because it restricts an individual’s knowledge.  When legislators oppose civil unions for same-sex couples, they’re effectively declaring that the state sanction such a legal union only on the basis of religious traditions and practices.  When states or legislators require businesses to close on Sunday – as many did at one time – that is imposing the requirement of Christian religions on commerce.  Why not require closure for the Jewish Sabbath… or on Saturday for Seventh Day Adventists?

One of the founding principles underlying the Constitution of the United States was an understanding that there’s a significant difference between freedom of religion and state imposition of religious requirements on everyone. It’s one thing to allow someone to close their business on their holy days.  That’s allowing individual freedom.  Requiring everyone to close on Sunday is using government for religious purposes.  Several years ago, here in Utah, constituents pressured local lawmakers to forbid civic functions on Monday nights because that interfered with the LDS practice of Monday home evenings.  Thankfully, such prohibitions weren’t imposed.

Virtually all widely accepted ethical, moral, or religious beliefs agree that such acts as theft, assault, forgery, fraud, murder, rape should be prohibited, and their practice punished.  The obvious conflict between freedom and legal codes lies in the gray areas where various beliefs and religious codes disagree.  But under the U.S. Constitution, as articulated by the Founding Fathers, personal freedom of action or speech should not be restricted unless it poses a clear and present danger to others…. And all too many “religiously-associated” attempts to restrict freedom of action and of speech have little or nothing to do with preventing such clear and present dangers, and far more to do with imposing restrictions on others in furtherance of one religious doctrine over another.


25 thoughts on “Religion and the Constitution”

  1. Steve says:

    I agree with the main point and most of the specific examples of your blog. However, stating that a stand against abortion is only a stand against freedom or a woman’s right to choose is disingenuous. Life begins at some point. After that point then a stand against abortion could be considered a stand for the child.

  2. It’s not disingenuous; it’s what’s required under the Constitution, with some caveats. Essentially, the Supreme Court ruled that the woman’s right to choose is paramount until the fetus is old enough to be viable outside the womb, or, as I understand it, unless her life is endangered. Given that we recognize the right to self-defense, I’d also argue that a woman has the right to defend herself against a pregnancy that could take her life. The point you raise is a moral one, not a legal one, and we live under secular laws, not religious ones, a point that the Founding Fathers were clear to make.

    1. R. Hamilton says:

      The question of when life begins, aside from some (more or less) objective definition such as viability, is metaphysical; and the government is no more qualified to make a metaphysical pronouncement that at (to push it to extremes) first cell division it _isn’t_ a human being, than it is to say that _is_ a human being.

      Pragmatically, erring of the side of a narrow definition of human has caused grievous problems in the past.

      Once the genetic material is combined within the fertilized egg cell, it’s at least a specific _potential_ human being, separated only by time and normal development from being unambiguously a human being.

      A right of self-defense always prevails; nobody is obliged to commit suicide for another. But the situation rarely arises that one can only save the unborn or the woman, but not both. The far more common situation is elective abortion…and whether or not that blob of tissue is a human being doesn’t change that it _could_ be, save for that choice.

      At what point do you think it’s reasonable to restrict that choice to only medical necessity?

      At what point do you think it’s at least reasonable to require consideration of sonograms or whatever other information is available to make that choice as gravely serious as it should be (even assuming that it’s just a potential human)?

      I’m not one myself, but as far as I can see, it’s entirely possible to be a materialistic atheist and still be pro-life.

      1. Nate says:

        Human eggs and sperm are themselves, by very definition, “potential humans”. If we are protecting everything in the potential humans category, masturbation would also be contraindicated. Which does happen to be the view taken by the catholic church.

        All of which reinforces Mr. Modesitt’s point that religion specific morals should not be enforced upon a public that (ostensibly) has protections from the tyranny of religion, just as religions have protection from the tyranny of the state.

        1. R. Hamilton says:

          …but until there is a specific combination of genetic material, they are the raw material for potential humans, but do not represent a specific potential human.

          That’s one clear-cut marker along the path. I’m not saying it’s the only one, and it’s clearly not one that everybody agrees with.

          I am saying that holding out for maximum consensus when protecting human life would be a mistake.

          1. Nate says:

            If you don’t want maximum consensus, what sort of consensus do you want?

            A vast majority of states have laws prohibiting abortion after the fetus reaches the point of independent viability. Personally and for society as a whole, I think this makes sense, because it allows for an individual identity preciously when it is capable of be an individual being.

            Further more, it is not as if we are lacking population in any way. Our societies are constantly increasing resource usage per person. So if we do not contain the growth (not by force, but simply by continuing to allow the freedom to choose) we will quickly move beyond sustainable levels (if we haven’t already).

          2. Nate says:

            Sorry; precisely, not preciously

    2. Steve says:

      We can consistently save newborns at 25wks gestation. They are viable outside the womb. Should we not then consider elective abortion after 25wks murder based upon secular law?

  3. Wine Guy says:

    Adherents to a particular philosophy (church-based or otherwise) have the right to offer up their opinion, but their rights over my person end right where their own skin does – just as do mine.

    Freedom to practice your own religion does not give you the right to impose your particular set of beliefs on me. I can reasonable assume that there are few christians who would be willing to accept some of the things about life and this world that I accept as fact… the first being that Truth is a human construct.

    Perhaps a reminder to legislators and public personae of various flavors (bishops, radio talk show hosts, etc.) of why the Pilgrims came to Plymouth might be in order?

    1. R. Hamilton says:

      Truth is absolute, boolean, and in principle, measurable, if often beyond any existing capacity to evaluate or measure.

      _Rhetoric_ about truth is a human construct.

      1. iossiander says:

        Fact is absolute, boolean, and in principle, measurable. Example: the Earth is a sphere.

        Truth is perception. Perception is why eye-witnesses tell different versions of the same event, which they believe is the Truth.

  4. rehcra says:

    This argument is always a hard one. The base for each side is against what they see as the extreme wrongs of the other side. I am not talking about abortion but of both freedom of religion and separation of church and state. Just because someone believes something because of their religion does not make it wrong nor does it make it right. As bad as following some religious book like it is infallibly written by god so to is grammatically scamming old laws as if they are perfectly written in a by gone era. and perfectly relevant to who we as a people are today.


    1. R. Hamilton says:

      Umm…except for the disgraceful (if at the time unavoidable, to obtain all the rest) compromise permitting slavery to continue, the Constitution written by a bunch of “dead white men” was brilliant. They understood very clearly that a central government needed to be based on limited enumerated powers split across multiple branches, leaving considerable sovereignty to the states which were after all of much more impact on the individual citizen; that it was better to have a minimal and often inefficient government than one that attempted to solve every problem at the cost of reducing both personal and economic liberty.

      That’s as relevant now as then, and anyone who disagrees is wrong. That’s not just a judgemental statement, it’s an understanding that the founders were painfully aware of the weaknesses and failings of human nature, and wanted to be very sure that what they built would not amplify those failings. Human nature hasn’t changed significantly in millennia.

      In the aftermath of the civil war, abuses by the states led to a reduction in state sovereignty. That was necessary, but failing to limit that reduction to only apply insofar as patterns of abuse continued to exist was a huge mistake, clearing the way for the centralist tyrants of yore to re-emerge wrapped in the kinder, gentler pretense of Marxist dialectic (where if you look at their how-to manuals, they’re quite willing to be every bit as oppressive and deceptive as any monarch ever was). Traitors, the lot, that should be treated as the enemies of all free people that they are. Yes, I’m saying that FDR should have been charged with treason (or at the very least, violating his oath of office) for WPA and Social Security. And that’s just one, and not the first or last or limited to that party. Better millions starving than one person’s liberty abridged now or in generations future to create some government program to protect people from adverse conditions or from failure to plan for their future.

      Extremely specific laws can of course become obsolete. But do they need to be written like that in the first place? Fraud is fraud, whether it’s done in person, via mail, or over the Internet. Extend that concept, and you get the picture.

      1. iossiander says:

        Here is an opinion of our Constitution espoused by Justice Oliver Wendell Holmes:

        “But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” Lochner v. New York,

        The Founders were brilliant when crafting a stable and flexible document–one which could be changed to fit the times and opinions of the People. The Constitution is a living document. It does not establish a preferred economic theory, such as capitalism. It does not restrict the Country from moving towards more restrictions on the central governments or more on the state governments.

        It is personal opinion, held by more than a few, that FDR should have been charged with Treason. Just as it is personal opinion that George W. Bush should have been charged with War Crimes and Treason.

        I more along the lines of the Preamble: … insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

        Our government is to look out for us, not oppress us or allow us to be divided into second and third class citizens because of our bank accounts or political connections.

        1. R. Hamilton says:

          People are divided into classes regardless of race, color, creed, yada yada. They are divided by their ability and their will to succeed. Those will be rewarded under any reasonable system, because if they aren’t the common good that is served by people striving to be more productive won’t be served.

          In the former Soviet Union, there was an expression “they pretend to pay us, and we pretend to work.”

          Government redistribution or subsidies as an attempt to manipulate an otherwise free market really don’t work.

          A free (or close to free, with only regulation where the most compelling need is served) market is probably not fair or just, although those things are so subjective as to be pointless to argue. But letting buyer and seller reach their own agreement is the least inefficient solution…far less so than any attempt to allocate resources, regardless of the high principles being espoused. Particularly since human nature is inherently prone to finding the opportunities for corruption, and exploiting them. Whether it’s crony capitalism or creating dependency to insure a future supply of constituents, the more government does, the more corrupt it will be.

          If I were king for a day, I’d abolish even much consumer protection as we know it, and simply set up a reporting system where everyone could share their experiences…but one that was structured enough to prompt for specifics, and included tools to provide stats and comparisons. Of course there would be plenty that would talk trash about their competitors…but at least there would be enough information that a buyer that wasn’t an idiot _could_ beware. The ones that are idiots, like the ones that caused lemon juice to be removed from dishwashing liquid lest they try to drink it…frankly, I’m tired of protecting them from themselves. I don’t agree with Darwin on everything, but allowing fools to permanently remove themselves from our company would be a great pleasure.

          People are being divided into classes based on political connections _now_. Crony capitalism flushes money down the drain with folks like Solyndra in return for support. Little better than money laundering (and yes, both parties do it). Being a vocal conservative in the arts or media or on a college campus is probably not a great career move.

          Once again, reduce government to the minimum and you _reduce_ the ability to apply either the carrot or the stick. At least our bank accounts are mostly earned (most rich people didn’t get that way by inheriting their money). I have no problem that some people had drive that I never did, and made billions. More power to them. Their fair share of taxes should be no higher a percentage than mine, or than someone at the poverty level even. Right now we have nearly half the country paying zero income tax. Of _course_ they’ll vote for every handout, because they’re not paying for it. But by doing so, they’re trapping themselves; there are people who never strive to better themselves because once the taxes kick in, they’d barely break even on incremental increases in income. Therefore we need one tax rate for everyone, which would increase mobility; and we need to phase out all benefits and entitlements

          Being at the bottom is _supposed_ to suck. It’s _supposed_ to be one step from starvation. It’s _supposed_ to make you take three jobs to get out of that situation, and put off having a family until you can afford it. People have had to do those things since…forever, there’s no excuse for buying them off now.

          Having thus ripped into both government and pandering by government to the less capable, let me suggest a shocking alternative: private charity. If someone truly cares about their fellow person, they’ll be actively involved in doing something about it, and not just leave that up to government. They’ll also be expecting some accountability with whatever time or money they give.

          In the end, while there are those I have helped and will help, it doesn’t trouble me too much if not every life is saved. I’d rather count a few percent dead or defeated under a free economy as just one of the costs of liberty…as are those of highway deaths and other accidents that we try to minimize but not to the point of eliminating 1+ ton weapons from incompetent hands, or those of fighting wars from time to time.

  5. AMos says:

    “At what point do you think it’s at least reasonable to require consideration of sonograms or whatever other information is available…”

    This is what Virginia and several other states are trying to require. There are laws being considered to require women who want abortions, whether those women grant consent or not, whether their doctors grant consent or not, to be administered a trans-vaginal ultrasound–essentially, an 8-10 inch “wand” inserted into their body against their will. The increased data from this procedure is very minimal, especially considering just how detailed and effective modern ultrasounds are. The real motivation behind these laws is to violate an individual’s privacy and self-determination so that they will be less likely to go through with an abortion. In other words, it’s a series of roadblocks, just like the voter identification laws, intended to prevent people from doing what is constitutionally their right to do.

    This is not a question of when life begins, because, as Nate points out, that is a very indeterminate measure that lawmakers are incapable of judging, especially if you try to legislate that “potential” humans are the same thing as “actual” humans.

    I suspected when I read Mr. Modesitt’s post that most of what he said would be ignored and the comments would focus on abortion, which is not surprising. I would like to add to Mr. Modesitt’s examples that many states, mine included, are taking steps to excise certain “uncomfortable” facts from public schools. One of those truths they rushed to expunge was the ownership of slaves by the founding fathers. Similar measures have been taken in many states, mine included, to require public schools to teach the religious belief of creationism alongside the scientific evidence of evolution, and to treat them as equal–essentially using taxpayer dollars to force your children to learn one particular religion’s anti-science belief in a science class.

    Calling FDR a traitor and the WPA an act of treason is a bit of a stretch. It overextended executive authority, but in no way did it help a foreign government overthrow, make war against, or serious injure the United States, which is the legal definition of treason. In fact, it did just the opposite. The WPA was clearly responsible for saving tens of thousands of lives by providing employment and housing for people who otherwise might have starved. It was also a large factor in the country’s rise out of the Great Depression, not to mention the very real benefit of providing many towns, such as mine, with public libraries and post offices.

    “Better millions starving than one person’s liberty abridged…” How is that not a different form of tyranny? Any government that would allow millions of its citizens to starve just because it was so unwilling to help them when it had the ability to do so does not deserve to remain in power. There is a very small difference between letting people starve who you have a duty to protect, and forcing people to starve. On the scale you’re talking, I think that line becomes invisible.

    1. R. Hamilton says:

      I don’t want schools teaching ideology, not the usually phony creation science (which, although I’m all for the religious view, seems to me to compromise _both_ religion and science, and quite unnecessarily so, since a reasonable person could encompass both without conflict, not by contorting either to conform to the other, but by recognizing that they’re from such different perspectives as to have very little overlap). But also not the Marxism-light nor the if-it-feels-good-do-it-just-do-it-carefully ideology either. Stick to the three “R”‘s, science, history (with multiple views, but not to the point of being really contrived about digging up opposing views) and an overview of the other mushy stuff (arts, humanities, etc). Maybe formal debating skills; I never learned that, and I regret it, because if I had I could argue far more rigorously. And to practical things, like balancing a checkbook, avoiding huge debt, etc. I don’t oppose the humanities because I’m uninterested in them, I oppose too much of them because they’re so subjective and such easy tools with which to propagandize. And because an artist had better be effective in the economy, without subsidy. Or they’d best not quit their day job.

      History…Washington and Jefferson owned slaves (although they weren’t fond of the institution, they weren’t going to diminish their estates by promptly freeing all their slaves). Being from the south, they were firmly on _both_ sides of the compromise…but one of the reasons they may have done less than they could (which wasn’t necessarily as much as one might think) was to avoid exacerbating divisions. By our standards, and perhaps even theirs, they fell far short of what they could have been. But by the standards of the time, they were probably walking a tightrope.

      The northerners (Adams, Franklin, etc) presumably didn’t and didn’t approve…but dealt with such matters as they were rather than as they wished they were.

      Later, even Lincoln thought non-Europeans inferior perhaps…but thought that all were entitled to equal justice under the law regardless. That’s just the way people were then. Didn’t keep the smart ones from realizing it was a problem that would only get worse, but not only their attitudes but those of most others constrained what they were able (or willing?) to do about it.

      The founders weren’t saints. They were realists, mostly. They did endure more than most of us have for what they believed, and were more diligent than most of us in applying the lessons of history.

      Contrast the American Revolution with the French Revolution…where equality of outcome rather than opportunity got a lot of attention…the guillotine got a workout…and their revolution didn’t last – which Republic is France up to now? Maybe the founders didn’t do so badly after all. Their thinking came from the same times…but led to mostly better results.

      The _least_ that federal involvement in jobs programs and Social Security was is exceeding the enumerated powers. But I still think that socialism, however -lite, is a crime against humanity of such scale as to always be an enemy of free people. So even given the narrow constitutional definition of treason, I don’t see it as such a huge stretch to apply that word.

      Anyone can of course have any opinion, and free speech particularly although not only means political speech. But to actually hold office carrying out policies of the left, at least at the federal level (whether it’s possible at the state level is up to the state’s own constitution), goes beyond freedom of speech and enters into actions, which is exactly what laws are supposed to prevent or punish.

  6. rehcra says:

    R. Hamilton, your statement of ‘Human Nature’ unchanging is hinged on a scientific basis that plays no role in our actual lives. To say that society and the way we conduct our selfs on a day to day schedule has not changed
    or that the laws that govern us can simply be reinterpreted to fit these ‘non-Human Nature’ changes is grossly flawed and over confident in the concept behind the laws of the past. Laws are made of the times not of ‘mans unchanging Nature’ Treating dead leaders with sovereignty belays us to tradition And standing on tradition for ones laws as a society is like playing a game not to lose. More then that it takes our need to be responsible for our own lives and passes it back on them or on Judges because of interpretations. As if Interpretations of events are like math.

    Your interpretation of those events in history is just that Interpretations. Judges are needed because laws are flawed and incomplete. But interpreting laws beyond that is just manipulating the system for ones own beliefs. Their is no reason society should not make the laws the way they feel they should be instead of allowing complex flaws plastered over by past judges interpretations of how old laws are and should be.

    Do laws need to be written specific? If they are to be fair yes.Fraud is not equal to Fraud. Manipulation through legal loop holes can be every bit as fraudulent as a basic scam.Why not make it illegal for people to perform a specific act instead of making people have to add small print to cover their own…….

    As for the rest, I completely agree with AMos


    1. R. Hamilton says:

      Sorry, no. By defining fraud or theft without listing every example, one leaves open the possibility of allowing existing laws to cover the same behavior applied to new environments (like the Internet). There is of course a balance – _too_ vague a law would let judges rule…and be a guaranteed employment program for lawyers. Lawyers and judges are necessary parasites, but the only thing they produce is an outlet for dealing with loose ends in an orderly manner – they shouldn’t be encouraged to expand their powers and numbers.

      Your argument seems to be that each generation can re-interpret history according to its own wishes.

      To some degree that happens anyway, whether I approve or not.

      And mostly I don’t, not to trap future generations in past mistakes, but to make damn sure they’re bound enough by past learning so as not to gratuitously _repeat_ those mistakes…although individually if not institutionally, many will anyway.

      Moreover, limited government with enumerated powers is _always_ and _absolutely_ superior to flexible government…because the accumulation of power has no other end state than to be met with opposition.

      Otherwise, you have the tyranny of the majority…or the old warning that when the electorate discovers the power of the purse, they’ll run amok.

      Adapt, yes…but an absolutist position against absolutes isn’t just self-contradictory, it’s stupid. You don’t need a whole bunch of absolutes forcing an unduly elaborate code on everyone…but you need enough of them to _keep_ people from contriving either individually or by subverting government to force their will on others.

      Starvation is better than dependency, and anyone who disagrees should try both.

      1. rehcra says:

        “Your argument seems to be that each generation can re-interpret history according to its own wishes.

        To some degree that happens anyway, whether I approve or not.”

        No, my argument is that reinterpretation of the laws(not history, that could only be fixed through better education) happens regardless the only question is if we embrace it as a hole or pass it off to be someone else’s problem.

        You act like you don’t want laws to change/re-interpreted but in your model it has to happen constantly. It can’t work without it.Judges are here because laws are flawed but to suggest that vague laws are better is to insinuate that judges can not or will not adjust laws to fit situation unless the laws are vague.All making laws specific does is make Judges actions more easily checked against the laws.

        As for starvation or dependency, we have all been there its called childhood. And if a country is it’s people’s parent, as I see it any parent who lets its children starve is a parent not worth having. Exceptions for the parent that gives their all but is in an impossible situation do to forces beyond control.

        Although I still don’t understand why you would bring starvation up when all it can do is make you seem…. ‘Wrong’ or evil.

        Adapt isn’t enough. ‘I can fix so many holes in my boat but sooner or later I need to get a new boat or’ but I do agree with the rest of that paragraph.


        p.s. as for tyranny of the majority in apposed to tyranny of the few? Or when Electorate discovers the power of the purse to when the exact same thing happens?

  7. Hob says:

    Abortion doesn’t seem to be a moral problem as much as an economic problem.

    If the women feels for whatever reason that the quality of her life or the child’s is going to be effected negatively, she gets an abortion.

    People who object rarely want to deal with the underlying problem–if they want the child to survive, they would have to offer some guarantee to the women that her fears if realized would be insured against.

    Now short of this, what people are basically saying is that economics is not our reality–that some form of moral reality exists–if that is so, one should be able to show how that is reflected in economics.

    If life is valuable, then our capital systems would reflect it, they don’t. In fact anytime anybody tries to force it to do so it fails. Why? Human nature is very far from the Morals of God, perhaps a better understanding of original sin would help those who doubt.

    Given the often dramatic effects that befall when a society becomes ‘Moral’ I for one ‘believe’ in reality based governance.

    1. Steve says:

      Many of Mr. Modesitt’s books have societies requiring that you give more than you get. If a society can perform an abortion based on economy, surely we can terminate the untreatable mentally ill, physically ill and criminals in our society. It would go a long way to reducing out national debt.

      1. R. Hamilton says:

        Let’s think through what happens when we empower actively deciding who is fit enough to live and who isn’t – not merely withholding treatment, but hurrying on the ones that are a liability.

        An uncle of mine never lived past a few years old because a party mentioning the name of which would invoke Godwin’s law controlled enough doctors that he was given a fatal overdose of a needed medicine…on purpose.

        I have no problem with _letting_ people die of the consequences of their own actions…or even if the cost of intervening to save them is untenable (but without preventing a private charity from intervening if they wish). But I have a major problem with allowing anyone to decide for others who it’s ok to terminate.

        The herd needs thinning, but of natural causes, not contrived ones.

    2. R. Hamilton says:

      They don’t get a lot of publicity (non-controversial activity doesn’t whip up support or sell papers), but there are charities that will offer medical assistance, adoption services, etc as an alternative to abortion.

      Contrast that with the _huge_ profits made by some abortion providers.

      There are utterly non-religious, libertarian arguments in favor of restricting abortion, even if the costs of doing so must be born publically (the latter shocked me a bit when I read those, never saw a libertarian argument like that before).

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