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Do We Want a Redeemed Constitution?

My current podcast is a discussion with a most excellent scholar, Michael Paulsen, on the book he has coauthored with his son, Luke Paulsen, introducing the U. S. Constitution to the general reader. Good as the book is in many respects, it did surprise me with its embrace of the idea that the Constitution of 1787 was a pro-slavery document. In terms evocative of the radical abolitionist William Lloyd Garrison—who once declared the Constitution to be a “pact with the devil”—the authors declare:  “If slavery was our nation’s original sin, the Constitution was our nation’s deal with the devil, and repentance, redemption and restoration did not come easily.”

Is the book’s judgment that our Founding document was pro-slavery justified? I’ll give my full answer in a future post, but for now let me say, I find it unwarranted and wholly dismissive of the principled compromises during the Philadelphia Convention that made it possible for slavery to be extinguished despite its powerful growth.

Before even getting to that, though, I would ask: How exactly does one redeem a political constitution? Or to put it differently, is such a document even among the types of things that can be redeemed?

To think so seems to me, to put it mildly, a category error. It conflates the political things, that is, the human things, with religious concepts and terms. The power of the Garrisonian-sounding statement I’ve quoted consists in the fact that it places the Founding of the American constitutional order under judgment of the supernatural order. Garrison, you will recall, found the federal union so morally corrupted by the inclusion of slave states that he called for disunion as the only acceptable course for free states to obtain moral purity. The limitations of power, interests, and circumstances that the Framers faced in the Philadelphia Convention were, in Garrison’s eyes, no excuse. Did the Framers even have the power to end slavery in the states? No matter. Garrison, we might say, needed the American Constitution to be washed in the blood.

Jacques Maritain in Man and the State (1951) described this facet of the modern mind, an almost millenarian willingness to equip the state with powers too heavy for human hands to hold. He said frequent association of the state with sovereignty–a term of metaphysical and religious absolutist meaning–sets up an expectation that man’s religious longings and hunger might be satisfied, or at least reflected in an institution that simply is not capable of fulfilling that expectation. In this way, a sovereign state can minister to the humanitarian needs that the modern democrat repurposes in the state—needs that become authoritarian when backed with such absolute power. In short, Maritain was warning that such confusion over purposes, powers, and potentialities won’t end well.

Complementing Maritain’s counsel are Pierre Manent’s recent musings about the need to separate human things and religious things. Neither can quite do without the other, but the tension between them is born of the fact that both are entities in their own right that speak to separate human capacities that frequently seek dominion over each other. We must be cognizant that the modern political freedoms of the West, adds Manent, are achieved through human virtues in pursuit of temporal ends. The founders of a political order and its train of statesmen may well be religiously motivated, or motivated by a belief that they are participating in something greater than themselves. But this is not to say that what they have founded must be in accord with the theological virtues. Politics is more limited. We cannot demand from it more than it can give.

And so we return to the Paulsens’ judgment of the American political order: that if it wasn’t ill-founded, it was certainly besotted with sin—and that the pro-slavery Constitution received its redemption through the blood of the Civil War, the rhetoric and statesmanship of Abraham Lincoln, and the Thirteenth, Fourteenth, and Fifteenth Amendments. I note that if we are willing to say that a bad Constitution was made good only through the carnage of war, what does this mean for American constitutionalism? Is its course one that requires constant perfection?

In one of Jefferson’s more unguarded moments, which might have revealed his true mind, he made the famous observation that “the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it’s natural manure.” Pairing such Enlightenment perfectionist thinking with the notion of redeeming the Constitution, we might wonder when we finally get to stop and look to a body of organic, nearly fixed law whose sole purpose is to limit power and, where it is called for, to channel it in ways that uphold the liberties of individuals, states, and communities to order their lives as self-governing entities.

There may not be another civil war to fight, but a redeemed Constitution is a heavy document. How is it to be maintained? Does it need further perfecting by more enlightened understandings of social justice, racial equality, educational equality, gender equality, and now gender identity? Need such perfections be consonant with the constitutional forms of self-government? Or might fuller and fuller redemption require extra-constitutional judicial opinions taking us to domains that legislatures have yet to discover? The Paulsens may well disavow such ambitions. But the potentialities imminent in the redeemed Constitution certainly raise these questions.

Reader Discussion

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on August 25, 2015 at 10:34:28 am

The second declaration in the 1774 Articles of Agreement by English subjects in the colonies reads

"We will neither import nor purchase, any slave imported after the first day of December next; after which time, we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it."

What happened? Why wasn't the associated complaint against the king included in the Declaration of Independence?

I understand only 40% of inhabitants in the 13 colonies turned states were patriots and five of thirteen states were non-slave states. If the abolitionists split in that proportion to declare independence they'd have been 15% of inhabitants. As it is, the 40% needed the strategy and power of France at Yorktown, 1781, to gain the benefit of independence. They had to rely on concerns beyond slavery to have a union of states.

The defeated King did not in 1783 recognize the Confederation of States, rather declared the freedom and independence of thirteen states and named them.

When the continental Congress tried to strengthen itself, the Virginia delegation arrived with a plan to form a nation. They drafted the constitution for the USA with a precedent that 9 of 13 states would be required to form a nation. The five non-slave states could only partially separate to form an independent country, say USA of the North.

Once the ratio of slave states changed from 8:5 to 15:19, Abraham Lincoln became arrogant enough to trump the constitution for the USA (ratified as negotiated on December 15, 1791) with the Declaration of Independence (1776) and re-interpret its claim that elite patriots were equal to the king. His first inaugural address is "in your face" toward the seven seceding states who grew to 13 with the ratio 13:21.

Still with a "don't tread on me" spirit and citing their Bibles to refute evidence-based reasoning like "I would not want a master to own the product of my labor," the Confederate States declared that the Northern states had breached the constitution. Lincoln said, "the Union will not intervene in this state squabble," but we will force you to your obligations in perpetuity even though we have broken ours (see again his first inaugural address).

Stopping there, the story is one of might make right and no one can claim fidelity to facts and commitments, including Lincoln. This is the politics we must stop: the politics of lies and wars.

I covered a lot of issues and would like response, but most of all an better answer than mine about what happened to Declaration 2 of the 1774 Articles of Agreement.

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Phil Beaver
on August 25, 2015 at 11:02:23 am

Before moving on to something that is probably more vital to what has been our social order and the relationships within it than "redeeming" the format for establishing a body of authority, we might gain some insights by considering the importance of *written documents* in the era of that establishment. How are words that describe what *is* less sacrosanct than concepts of what *ought* to be, simply because they are preserved as writing - rather than simply as custom. In short, had the concept of the English Constitution (unwritten), as understood by the then Americans, been continued here uncontained by documentation, what would be the subject of "redemption?"

Printed words, documentations, convey thoughts, not emotions. The thoughts may be shaped by emotions, but the hearts from which those emotions surged are still now. Those thoughts, so conveyed, may stir emotions in hearts of later times; but, the words remain thoughts, not emotions. The emotions of particular times, places and circumstances are not always comparable; nor should they be judged as such.

But, to the more vital:

The extensive thinking to preserve and validate the idea of social order organized on the concept of authorizing the embodiment of power by understandings in written documentation (rather than as imposed by physical or ideological force) is probably essential if that concept is to survive, rather than be re-established through violence in the future.

Still, equally, if not more, vital is the greater "redemption" of the social order from organization under a regulatory state, which is an embodiment of authority that has no constitution, written or understood.

Until the regulatory state is restrained, contained and brought within some understanding (preferably that of the written Constitution of which we have experience), the extensive thinking to preserve any particular Constitutional ideas or precepts - is for a possible, and dwindling, future.

Constitutional concerns are smothered over by the overlay of the regulatory state. For those concerns to have effective action, that overlay must be penetrated, if not removed.

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R Richard Schweitzer
on August 25, 2015 at 11:40:07 am

"Does it [a "redeemed" Constitution] need further perfecting by *more enlightened* understandings of social justice, racial equality, educational equality, gender equality, and now gender identity?"

The intent of including that phrase is not clear from the overall text.

The "understandings" of those concepts are matters of the understandings of the *individual* members of a social organization. To the extent of the commonalities of those understandings amongst those members they form the nature of the social order. Perhaps we should consider broader commonalities of those understandings rather than assume "more enlightened" members. The hubris of the "more enlightened" of the 17th and 18th centuries is, by now, well documented.

There are "Constitutions" and "Declarations" purporting to convey such "more enlighten" understandings in the forms of written words. They have not appeared congruent with the understandings of the members of those social organizations in whose hymnals they are writ. Human interactions, not the designs of documentations, determine understandings and the relationships that flow from them.

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R Richard Schweitzer
on August 26, 2015 at 18:45:50 pm

Caveat: I have not yet read the book in question. But that said, it certainly does not strike me as impossible to argue that the a constitution can be both pro-slavery and also not in the category of things which are religious (ie., things that can not by their nature be redeemed).

Moreover, in strict theological terms, it is not entirely clear that slavery is by its nature sinful. If that is so, then (assuming that the class of things that are constitutional can in fact be redeemed) it is entirely possible for a constitution to be redeemable, while at the same time continuing to be pro-slavery.

Certainly the distinguished conservative Presbyterian theologian Charles Hodge thought so. Hodges argued in the 1830s and 1840s, with some cogency, that slavery was not of necessity sinful. He suggested that abolitionists erred in arguing that all slaveowners committed sin, and that properly speaking, their complaint was with the laws regulating slavery as implemented in the South, and not with slavery per se.

Hodge's thought regarding slavery receives some attention in Mark Noll's excellent survey, America's God: From Jonathan Edwards to Abraham Lincoln. The Princeton Theological Seminary hosts digitized copies of several of Hodge's essays at their library website, if anyone is interested. His 1836 review of William Ellery Channing's book Slavery is nuanced and intellectually substantive--worth reading on this issue.

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Kevin R. Hardwick
on August 26, 2015 at 20:12:31 pm

James H. Cone in the book A Black Theology of Liberation, 1970, emerged as one of the most theological voices in North America. He seems to assert that white Christianity's failure to protect black Americans proves that the Christian god is black. The only way for whites to be saved is for them to help lift black Americans to supremacy. Do you think the theology of a god's skin color is valid?

I imagine this question seems easily dismissable (my posts meet brick walls), and if so, perhaps Anthony B. Bradley's book Liberating Black Theology, 2010, might lend some credibility to the question: can exclusion of a people's theology enhance understanding the verifiable god?

One clue: if black Americans are ever to be Americans, their views must be considered. Mitochondrial DNA informs me that everyone alive is kin to me since we are all descendants from a woman who lived over 140,000 years ago and who's peer's descendants died out as their environments changed.Those bloodlines did not adapt. Feeling kin, I am concerned about everyone alive.

Informed by physics, can any theology survive?

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Phil Beaver
on August 26, 2015 at 21:02:27 pm

a simple question to your question: "Informed by physics, can any theology survive?"

why should it be so informed? They are separate aspects of human behavior and understanding with different purposes / ends?

It seems that one can be both a physicist and a theologian; or not. Indeed some appear to have morphed into theologians of physics -or have morphed physics into theology. Therein is the definition of "conflation."

Of course, this phenomena does not stop with physics as it appears that our much beloved functionaries in the Administrative State have also morphed administration into theology and mow both proscribe and prescribe "what is to be (properly) done."

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gabe
on August 26, 2015 at 21:43:59 pm

Sorry. I did not define physics. Dictionaries say it is a study. However, A Civic People of the United States (our work) uses "physics" to mean not the study but the objects of the study: energy, mass, and space-time. Everything including chemistry, biology, life, imagination, theology and ethics emerges from physics. If that is shocking, read Ursula Goodeneough's The Sacred Depths of Nature, 1998, or look at "Timeline" at the end of Brian Swimme & Thomas Berry's book The Universe Story, 1992.

Both theology and ethics emerge from physics. Physics both exists and emerges. Humankind discovers and tries to understand physics and learn how to benefit from it. That's the human practice of ethics. It's a noble, incredible endeavor.

Theology supports the belief in a god or gods. It presents a decision: yes, no, or I don't know. After, the choice is made, all else is intellectual construct. "What I believe" involves good or bad; omnipotent or in competition; omniscient or evaluative; white or red or black or yellow; one or many; on and on into nothingness. However, Michael Polyanyi, Personal Knowledge, 1958 holds a different view: Theology is a route to personal freedom. I respect that opinion for the individual but not for civic purposes. Civic refers to personal interconnects because we live in the same city, state, country, and globe. Civic differs from social in that there is no choice.

What's laughable about the USA is that the Supreme Court codifies legislative prayer and claims it is none of the people's business. The path out of this madness is physics-based ethics.

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Phil Beaver
on August 27, 2015 at 09:47:01 am

I am going to try again:

Reinsch writes: "And so we return to the Paulsens’ judgment of the American political order: that if it wasn’t ill-founded, it was certainly besotted with sin—and that the pro-slavery Constitution received its redemption through the blood of the Civil War, the rhetoric and statesmanship of Abraham Lincoln, and the Thirteenth, Fourteenth, and Fifteenth Amendments. I note that if we are willing to say that a bad Constitution was made good only through the carnage of war, what does this mean for American constitutionalism? Is its course one that requires constant perfection?"

The discussion here hinges on the notion that slaveholding is sinful. Slavery was a national sin, and had to be redeemed by sacrifice and blood. My eyes have seen the glory of the coming of the Lord.

But was it sinful? Antebellum Conservative Reformed theologians argued it was not. They offered a learned, careful, and theologically and philosophically grounded argument that the problem of slavery, however awful, was not a problem of sin. Charles Hodge offers one good example of this argument. Anyone committed to Reformed Protestantism must take the views of Hodge and others like him seriously. If Hodge is correct, slavery is not a national sin, and thus there is nothing to redeem. So the language of the Paulsens may simply be the product of a lack of theological reflection.

Which raises a related issue. Isn't it possible that when analysts like the Paulsens argue that the United States constitution was tainted by sin and needed to be redeemed, they are speaking metaphorically and figuratively? Maybe all they mean is that chattel slavery was a really bad, harmful, destructive, unethical institution, fully deserving of moral disopprobrium. Maybe they wish to argue that the Founders permitted this institution to continue, and in doing so made a moral mistake. Maybe they wish to suggest that the civil war clensed the constitution of this taint and corrected the founder's error. (Hodge would have agreed with most of this.) None of these claims is in its nature religious. But the religious metaphors of sin and redemption provide nice, pithy language for expressing all of this in a compressed and efficient way.

If that is the case, then Reinsch has wasted his time unpacking language that was never intended to be read literally, as a theological statement.

So it seems to me, if Reinch's argument is to stand, he needs to foreclose this possibility, or at the very least take it into account. He needs to argue that the Paulsen's intended their statement to be read literally, and not metaphorically.

So, in summary: there is a solid theological case to be made that slavery per se is not sinful, in which case the constitution would not need redemption; and there is the possibility that the language in question is simply metaphorical, in which case the essay above miscontrues it.

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Kevin R. Hardwick
on August 27, 2015 at 09:55:55 am

Kevin, I call it as I see it or as I read it. I think the language of redemption is meant deliberately. I think that's the reason why our Founding can be called pro-slavery by the Constitutional Paulsens. This obviously makes it unlovely and difficult to conserve. But not to worry. Redemption will come. And I think it unlocks a politics of unending perfectionism. Moreover, it dismisses the achievable compromises of republican self government in favor of the quest for final justice.

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Richard M. Reinsch II
on August 27, 2015 at 10:37:31 am

Followup:

Fair enough. Its a blog post, so in that sense it does not have to be air-tight. I intended my comment constructively--I think the essay would be stronger if you made it clear why you believe the Paulsens' language should be understood as making an intellectually serious theological claim.

Still, suppose I am correct when I suggest that the argument that the constitution as originally framed was proslavery can be expressed in non-religious terms. I offer above a version of what a non-religious argument that the constitution was pro-slavery might look like. (There are obvious, secular rejoinders to that argument--as I present it, it is not a strong argument. But that is a different conversation.)

Do you think that *all* arguments for a proslavery constitution must of necessity be religious? Do you wish to foreclose the secular arguments?

Put this a different way. I learned this material initially studying with Louis Harlan and Ira Berlin. Those are two of the intellectual academic heavy weights in the study of 19th century race. More recently, David Waldstreicher, William Van Cleve, and Paul Finkelman have written intellectual work of some substance (Van Cleve is especially authoritative here) that argue that the constitution ratified in 1788 was a proslavery constitution. Do you think the cogency of their arguments depends on their endorsement of the kinds of *theological* commitments of guys like Channing or Garrison?

I think this matters because whatever the case may be with the Paulsens, the arguments of guys like Finkelman and Waldstreicher (and the others I mention above) represent the intellectual consensus on this issue. So if you are correct about what the Paulsens intend to argue, doesn't that just suggest that theirs is a marginal position, in the larger conversation?

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Kevin R. Hardwick

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