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What the Court Misses: Religion, Community, and the Bases of Ordered Liberty

In my last essay, I argued that the Supreme Court’s determination to treat religion as a purely personal expression denies our true nature, undermines religious community, and leaves us open to forms of ersatz community (and religion) dangerous to republican self-government. I will address the destructive capacity of courts’ anti-religious atomism to our common law in my third and final essay. Here I discuss the relationship between religion and the American tradition of ordered liberty. Our constitutional order was founded on an understanding, rooted in experience, that people develop the character and habits of association necessary for ordered liberty within local associations, and that central among these associations is the religious community. Court hostility toward these associations, rooted in a rejection of long, sustained historical practice, has undermined our capacity for self-rule.

It has long been obligatory for academics to mock Dwight Eisenhower’s statement that “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” [1] Like John Adams’ statement that “Our Constitution was made only for a moral and religious people,” such quotations are taken as, at best, formulaic utterances of “ceremonial deism.” Especially because they lack specific doctrinal content, courts take these kinds of statements, like “In God We Trust” on the coinage, as both legally and culturally empty, hence properly ignored as leftovers of a more primitive time. In fact, however, they reference the traditional understanding that our nation is rooted in religious practices that vary by locality and that the federal government has a duty to protect in all their variety.

It would be easy to reference a multiplicity of court decisions referencing the importance of religion to the American constitutional order, noting the Christian character of our common law, rejecting polygamy as hostile to America’s religion-grounded culture, and upholding government accommodation to and support for religious institutions and practices. Sadly, all of these historical examples are rejected by today’s judges and commentators on the mistaken, if not far-fetched, grounds that the 1st and 14th Amendments dictate a strict separation of religion from public life.

Courts today view religious issues and conflicts through the clouded lens of radical, atomistic individualism. In effect, they refuse to defend religious liberty because they reject religion’s true nature as a community in which one develops character through participation in common rituals and social activities rooted in common standards of behavior and a common conception of the Divine. In place of religion judges today place the individual “conscience,” guided by they know or care not what. Consequently, they issue decisions that undermine our tradition of common law, civil social order, and ordered liberty. Rather than enter the swamp of current Religion Clause jurisprudence, here I lay out the traditional understanding of the American constitutional order and the place of religious community within it. This order predates the Constitution and was flourished in the society that produced both the 1st and 14th Amendments; ignoring it distorts the language of the Constitution and courts’ attitudes toward religious communities.

America was built on religious community. The Pilgrims bound themselves to one another and their God through a political compact, securing social order for themselves in an otherwise lawless New World. Frontier families in the West built on this tradition by habitually establishing churches and hiring ministers almost immediately after choosing a sheriff and building saloons. Just as communities established the law and created gathering places to build new friendships, churches were always integral parts of new communities. No village was long without a church or a church building, which typically also served as the place for public schooling and town meetings. The symbolism of the church at the center of American acts of deliberation and self-rule can hardly be overstated. Americans made religion central to their public life. And this religiously-rooted public life made possible the common ground for strangers to work together and become neighbors. Without self-organizing churches, America never would have developed its tradition of individual liberty in light of self-ruling communities.

America’s early settlers often sprang from dissenting Calvinist communities in England whose members had “covenanted” with one another to cooperate and live godly lives together. As the Pilgrims’ Mayflower Compact put it, members bound themselves before God

to enact, constitute, and frame such just and equal laws … as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience.

Whether in Plymouth Colony or the frontier West, founding a township was a serious, communal act that meant re-forging the ties which tradition had set into members’ hearts, and this has always included religion. Founding a new community, especially on the frontier or in the wilderness, is an act of faith rendered easier by faith in God.

Townships’ religious, governmental, economic, and civic institutions all overlapped in membership and function. As a result, the township was an integrated whole that left much room for individuality and low-level conflict while forging common commitment to the common good. America’s townships worked because they were in effect networks of local associations in which people ruled and were ruled in turn.

Americans’ habit of voluntarism—of stepping forward to help clear that road, put out that fire, or take in that orphan—was ingrained in part by the necessities of life on the frontier. But history is full of instances where frontier peoples chose the path of communal failure by being selfish and cruel. The signal failure of the much more secular Virginia colony in its early days prompted issuance of the 1610 “Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia,” imposing harsh rules and penalties—as well as a strict religious regimen—on the colonists.

American voluntarism was culturally, which is to say religiously, rooted. Voluntarism was not just a matter of sermonizing, though sermons there were, in church, in court, and from the office of mayor or sheriff. There was a rhythm and structure to life, with religious association and good works at its center. Public prayers, days of fasting and thanksgiving, church festivals, churches’ central location and role in the town, all bound members together and forged instincts of cooperation.

Americans in their communities shared a set of common assumptions about what made for a good life and a good person. People knew what to expect from one another and understood their various roles in their common life. This is not the same thing as serfs who “know their place” in a fixed hierarchy. American equality, as Tocqueville understood, meant that laws applied equally to all citizens and each citizen helped constitute the associations making up the community. Moreover, even among supposedly pliant Catholics, there was an emphasis on the individual person, created in the image of God, who was a full member of a parish or congregation, with complementary rights and duties.

Long after independence, there remained substantial institutional and even “governmental” supports for religion’s central role in town life. School materials were unabashedly religious until well into the 20th century. Ministers were respected members of the community, and often its leaders (though, in an early expression of separation of church and state, Puritan ministers were not allowed to hold public office in colonial New England). And the law was unabashedly moralistic. “Blue laws” enforced sabbath observance. Laws against extra-marital sex protected the family. Laws against vagrancy, public blasphemy and drunkenness guarded the civic square’s role as a place for respectful engagement. The common law—that set of customs and usages enforced by courts, especially in cases of conflict—was deeply embedded in a Christian civilization that left much room for religious dissenters, members of differing religious communities, and the occasional atheist, but steadfastly upheld common standards of public conduct. Atheists were tolerated, but not allowed to shut out religion even where and when they found it intolerably offensive.

Low-level conflict regarding community goals, corruption, and the limits of social control were common. Because our country always has respected the freedom to travel, the right to exit was important in maintaining freedom and order. More disruptive was the influx of millions of Irish Catholics during the 19th century. Until the 1840s, a mix of compromise and separation had maintained townships’ character. Different groups tended to form their own towns and, when circumstances brought them together in the same town, to split public support and emphasize common beliefs. Indeed, the American Constitution was written with this kind of unity-in-diversity in mind. That document steadfastly refused to take any position on state or local religious establishments, forbidding federal interference with religion in the states even as it approved federal promotion of religious education in the territories.

The Irish Catholic influx after the Potato Famine was more disruptive than previous waves of immigration because of its size and pre-existing ethnic and religious tensions. A number of important Protestant leaders sought to maintain their own overwhelmingly Protestant publicly funded schools while denying public support for Catholic schools. In the end, though not without conflict, most states and localities forged working compromises by which Catholic schools received lesser forms of support such as textbooks, help with transportation and the like. But the idea had been broached that public schools should be “non-sectarian.” And, while in most of America this came to mean only greater cooperation in matters like crafting public prayers, the idea of “separation of church and state”—nowhere in our Constitution—gained institutional momentum with the rise of Progressivism late in the 19th century.

It was this mistaken, not to say intentionally crabbed, understanding of religious liberty that underlay later 20th century judicial decisions undermining religious liberty. Many came to see independent thought as something exercised only by Protestants free from “papist” loyalties; as time went on, elites came to see it as something constantly threatened by the slightest favoritism toward any influential religious system or community by any institution vaguely “public.” As a consequence courts today seek, not just “separation of church and state” but transformation of American culture and society. This includes upending longstanding common law presumptions, in the name of an individual conscience radically separated from its social and religious context. A veritable judicial war on religious community has been waged ever since. It is to this conflict I turn in my third and final essay.

[1] Criticism on this subject is often frankly quite sloppy. See for example Patrick Henry, “’And I Don’t Care What It Is’: The Tradition-History of a Civil Religion,” Journal of the American Academy of Religion, Vol. 49, No. 1 (Mar., 1981), pp. 35-49, where Henry misquotes Eisenhower’s “famous/notorious remark” in charging Eisenhower with engaging in American Civil Religion.

Reader Discussion

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on July 25, 2018 at 11:12:54 am

[Various statements] they reference the traditional understanding that our nation is rooted in religious practices that vary by locality and that the federal government has a duty to protect in all their variety.

It would be easy to reference a multiplicity of court decisions referencing the importance of religion to the American constitutional order, noting the Christian character of our common law, rejecting polygamy as hostile to America’s religion-grounded culture….

Wait—what? Government is supposed to protect local religious practices “in all their variety,” yet also suppress polygamy as hostile to some (non-local) religious practice?

When discussing religious jurisprudence, we can’t go two sentences without contradicting ourselves!

As the Pilgrims’ Mayflower Compact put it….

In Albion’s Seed, David Fischer describes the varieties of settlers in the New World, including the New England Puritans (1620s), the Virginia “Cavaliers” (1640s), Pennsylvania Quakers (1670s), and Appalachia’s Scotch/Irish “Borderers” (1700s). Then, of course, there were the experiences of the Native Americans themselves, as well as French trappers and people of Spanish descent moving up from Latin America. In short, we should be cautious about generalizing too much from the experience of the Puritans alone.

Americans’ habit of voluntarism—of stepping forward to help clear that road, put out that fire, or take in that orphan—was ingrained in part by the necessities of life on the frontier. But history is full of instances where frontier peoples chose the path of communal failure by being selfish…

Curiously, both the Puritans and the Cavaliers initially functioned as employees of the joint-stock companies that sent them to the New World to make money. Many of the Virginia settlers were explicitly indentured servants to the company. (Why “indentured”? Because the servant and the company representative each signed a giant contract printed in duplicate side-by-side on a large sheet of paper, with a crease—or indent--down the middle. The servant would then rip out his copy of the contract to take with him. Cool, huh?)

This economic structure provided little incentives for personal industry. Puritan governor William Bradford found that the practice of treating all produce as belonging to the “commonwealth” bred “confusion and discontent" and "retarded much employment that would have been to [the settlers'] benefit and comfort." So the Puritans began the practice of allotting land parcels to each individual settler. "This had very good success," Bradford reported, "for it made all hands very industrious." In fact, "much more corn was planted than otherwise would have been" and productivity increased. "Women," for example, "went willingly into the field, and took their little ones with them to set corn." Virginia also began a land distribution program.

So, by some accounts, selfishness—that is, harnessing self-interest—is what saved the colonies.

Bottom line: Autonomy is a “superior good.” I don’t mean to describe its desirability. I mean that it’s something that rich people/societies can afford, and that poor ones can’t. So yes, when settlers are relatively poor and isolated, they need a lot of cohesion just to survive—and that often takes the form of religious cohesion. (This may have been especially true in Virginia, where the death rate to malaria was something like 75%. Dictatorial control was asserted just to keep settlers from fleeing to join the Indians.) As society gets richer, it can afford more diversity—with all the good and bad that that entails.

Frohnen chooses to focus on the good aspects of cohesion and the bad aspects of diversity and autonomy. There’s plenty of evidence to bolster such arguments. There’s plenty of evidence supporting opposite conclusions, too. Again, these essays are just an exercise in confirmation bias.

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nobody.really
on July 25, 2018 at 12:03:17 pm

Oh, my. Perhaps a few corrections?
First, the Constitution’s protection of state-level variety in religious (and cultural) practices did not extend to federal territories. States determined the shape of their own public square, including the level of toleration for various, let us say “dissenting” practices. In the federal territories the lines were to be drawn by the federal government, in accordance with its understanding of the general common law of the United States.
Second, Fischer’s brilliant book makes no attempt to undermine recognition of the fact that some settlers were more influential on the general traditions of the United States than others. The American tradition was influenced greatly by the covenant tradition of which the Mayflower Compact was a prominent instantiation.
Third, the rather crude bifurcation of incentives as either selfish or selfless obscures the nature of social life. The Puritans found, unsurprisingly, that socialism undermines the incentive to work. They also found that the natural ties of affection that grow from common faith and common living are far more productive of virtue and worldly success than either tyranny or narrowly drawn understandings of self-interest.
Fourth, I’m happy to admit that my essays, here, have focused on the good aspects of “cohesion,” though I clearly note the prevalence of low-level conflict within functioning communities. My purpose is not, however, to merely confirm my own biases, but to present a side of the argument that rarely receives notice beyond formulaic derision. Community entails conflict because human nature is flawed. Without community there is nothing but conflict—and often of a brutal variety.

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Bruce Frohnen
on July 25, 2018 at 12:14:11 pm

My purpose is not, however, to merely confirm my own biases, but to present a side of the argument that rarely receives notice beyond formulaic derision. Community entails conflict because human nature is flawed. Without community there is nothing but conflict—and often of a brutal variety.

Great: I'm beginning to see the outlines of a testable thesis. Hypothesis: (1) Community (including religiously-inflected community) reduces brutality. And (2) we've observed a decline of community. Ergo, we should expect to find a corresponding increase in brutality.

So ... do we? Do crime statistics reveal that the world, or even the United States, is becoming more brutal?

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nobody.really
on July 25, 2018 at 13:43:00 pm

Professor Frohnen, by now you have learned as to one particular commenter on this blog site that it's best for you to stop after you say (as you said in the first words of your answer,) "Oh, my."

And that practical wisdom (which others here have learned from experience) comes in deference to the brevity of your life, the limits of your patience, and that particular commenter's incorrigible contrarian disposition and (as Thomas Sowell has written generally) his irreconcilable conflict of visions.

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Pukka Luftmensch
on July 25, 2018 at 15:21:59 pm

...that particular commenter [has an] incorrigible contrarian disposition....

No I don't.

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nobody.really
on July 25, 2018 at 15:36:32 pm
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Pukka Luftmensch
on July 26, 2018 at 06:19:35 am

Christianity, especially Protestantism, most particularly the reformed tradition and theology of Protestant Christianity, was of vital importance to the Founders, played a vital role in the Founding and was of existential significance to the development of community, culture, politics and law in America. The very concept of liberty as first expressed in early American politics and culture and later ultimately embedded in America's state and federal constitutions and embraced by Americans of all faiths and of no faith was based on several intellectual grounds, none more politically and morally important than religion and the Bible.

Professor Frohnen has provided a concise, thoughtful and well-stated essay on an essential aspect of that seminal historical matter, the relationship between religion and ordered liberty in early American history, as to which contemporary ignorance is so pervasive and endemic among the populace, its leadership and our educational institutions as to be utterly destructive of America's social well-being.

Ignorant people in high places and with great influence should read this commentary.

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Pukka Luftmensch
on July 26, 2018 at 12:18:48 pm

A little knowledge can lead you make silly statements.

After 1628, New England was settled and heavily subsidized by the Independent faction in Parliament under the guidance of Lord Saye and Sele (he was known as"Old Subtlety" in Parliament) as a possible place of refuge should things go badly for the Independents in the brewing revolution. The only difference between the Independents (they called themselves Congregationalists in New England) and the Presbyterians was in the form of church governance. In matters of theology there was and is no difference between them. Further, the chief difference between the low church Presbyterians, Independents and separatists and the CoE had to do with matters of form and ceremony. The Thirty-Nine Articles of the CoE are very Calvinistic while its forms and ceremonies hark back to the old faith. Nevertheless, it was the questions of church governance and an established church that left the Presbyterians standing with the CoE after 1645 and the Independents in control of England until 1660 and in control of the American colonies and the Atlantic trade through the American Revolution.

Virginia was a royal colony after 1624 and it is a mistake conflate the experiences of the royal and proprietary colonies with the joint-stock companies. For the first 75 years of its existence, Virginia was a notoriously badly run colony.

The Massachusetts Bay Colony had the same type of charter as the East India Company and the settlers were never employees of their chartered company but rather freemen of the colony by virtue of being stockholders. The New England colonies were always notoriously well run and tightly controlled. Lord Saye and Sele and his associates in the House of Lords insisted on that.

Bradford and the Plymouth Colony (which appears to have enjoyed the sub rosa support of William Cecil himself in the Privy Council) were not Puritans because they were separatists from the Church of England. The Puritans considered themselves a faction within the CoE. Baptists and Quakers began as Independent congregations in England and became separatists after 1654. However, during the English Civil Wars they were important members of the Independent faction with a strong presence in Cromwell's New Model Army, the Leveller movement and the Independent faction in Parliament.

The Plymouth and Massachusetts Bay colonies use of collectivism in the first year or two of their existence was a matter of necessity not an experiment in socialism. Their experiments were in democratic-republicanism and ordered liberty and it is remarkable how much democratic-republicanism the Independent peers in the House of Lords were happy to tolerate. Remarkable but not surprising since the same peers fully supported the New Model Army in the struggle against the Presbyterians and Scots after 1645. As Fischer observed in "Albion's Seed" the self-giverning, tightly run and well ordered New England colonials became possibly the healthiest and wealthiest discrete population in the world by 1700.

I do argue that all of the New England colonies can be accurately described as successful Leveller republics.

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EK
on July 26, 2018 at 17:22:42 pm

A slight editorial correction, if you will allow:

"Ignorant [mal-educated] people in high places and with great [or slight] influence should read this commentary" - as it may enable them to overcome their deep seated ideological disposition / bias gained over many years endured at university.

It would appear that many are more dedicated to presenting their wit, intellectual depth / nuance, and, of course, their disdain for the rather common superstitions of those who still *cling* to their atavistic rituals and belief systems.

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gabe
on July 26, 2018 at 17:26:25 pm

Oops - left this out:

"...atavistic rituals and belief systems than in observing the world as it is, recognizing human fallibility and accepting the consequences of all those Oakeshottian collisions that place us somewhere between Athens and Jerusalem.

If not Athens, they wish only to destroy all that which lies outside the Athenian borders.

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gabe
on July 27, 2018 at 00:12:23 am

...accepting the consequences of all those Oakeshottian collisions that place us somewhere between Athens and Jerusalem.

Wow, that's deep. Potentially 17,280 ft deep.

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nobody.really
on July 28, 2018 at 09:19:12 am

"The very concept of liberty as first expressed in early American politics and culture and later ultimately embedded in America’s state and federal constitutions and embraced by Americans of all faiths and of no faith was based on several intellectual grounds, none more politically and morally important than religion and the Bible."

This, especially what I put in bold needs to be unpacked. Of course religion especially in the form of Protestant Christianity and its bible were an important ideological influence. As were others, Greco-Roman, Enlightenment, Whig, etc.

Prof. F. mentions how the Puritans and their notion of covenant was influential. However, their approach to religion was more like the Calvin on Servetus approach than what we ended up seeing in "America’s state and federal constitutions."

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Jonathan Rowe
on July 28, 2018 at 10:06:56 am

I share your point: the sectarian influences are disparate, some embraced more than others, some less important than others. But the collective influence of the Bible and religion on the law, politics, constitutionalism and culture of early America (and, hence, today) was greater than that of any and all its constituent parts. The whole really was greater than the sum of its parts. And the various sectarian influences varied by region and by individual Founders.The Puritan influence, for example, was more cultural than legal and more felt in New England, certainly not nationally.

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Pukka Luftmensch
on July 28, 2018 at 10:51:57 am

"But the collective influence of the Bible and religion on the law, politics, constitutionalism and culture of early America (and, hence, today) was greater than that of any and all its constituent parts"

This isn't entirely accurate. On culture, yes! On politics, law, somewhat; it's complicated. On constitutionalism, very little.

The Federalist Papers and Madison's notes on the Constitutional Convention, cite the Bible little if at all and in fact cite the other ideological sources WAY more.

Even the study done by Lutz et al. to prove the Bible's importance among the different ideological sources demonstrates this.

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Jonathan Rowe
on July 28, 2018 at 11:28:09 am

I also think you shouldn't necessarily lump "the Bible and religion" together. These are two different things and the difference can be quite meaningful in this context. I have enough quotations from the Founders that demonstrate when they used the term "religion" they didn't necessarily mean "Christianity only" or so called "Judeo-Christianity."

Or consider America's Declaration of Independence. It's a religious document. It mentions a God of some sort in four different places. It's hardly a "Christian" document. I would argue, not even "Judeo-Christian" but simply generically monotheistic.

It doesn't mention Jesus or quote or cite verses and chapter of either the Jewish or Christian Bible.

Rather it uses generic God words to solidify an argument composed of Enlightenment and common law (rights of Englishmen) ideas. It also contains ideas developed in reformation circles (the idea of resisting tyrants who improperly usurp their legitimate authority) but doesn't necessarily invoke the God of the Calvinists, but rather invokes a more generic theistic authority.

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Jonathan Rowe
on July 28, 2018 at 23:12:06 pm

I agree partially with some and disagree completely with other of the assertions you made in your last two replies. Lacking an incentive for this forum to prioritize my efforts and spend the time necessary to muster citations and articulate in detail the grounds for my points of agreement and disagreement, I would sign off for now by saying simply 1) that the Lutz study found that the book and the religion of most prominent influence, most practiced or embraced by the Founders and most prominently mentioned in Founding documents is the Bible and reformed Protestant Christianity. Lutz did not count pamphlets, the most ubiquitous method of political expression, which means almost certainly that the frequency of public references to the Bible (and reformed Protestant Christianity which sprang from it) is undercounted in his study; 2) that the impact on the Founding of the Bible and religion, given what we know about their prominence, has been significantly understudied when compared with other prominent sources of Founding/Founders' thought, such as Enlightenment thinking, the history of republicanism and constitutionalism, political philosophy, particularly that of Locke and Montesquieu, and the common law of Coke and Blackstone, each of which is mentioned less than the Bible and religion according to Lutz's study, and 3) that my essential point is that America's Founding, which occurred between 1765-1800 (although I would extend it until the death of John Marshall in 1835) was the creative consequence of the political and moral genius of extraordinary men and of their historically-unique culture which was to a very significant degree educated with, knowledgeable in, supportive of and influenced by the religion of the Bible. One might call the period the American Enlightenment, and it was fueled by several intellectual forces, none more politically, morally and spiritually prominent than Christianity.

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Pukka Luftmensch
on July 29, 2018 at 07:47:13 am

Pukka,

I'll have to go back and look at the Lutz study to confirm this, but I think you are mistaken when you assert it didn't count pamphlets.

What I DO remember from the study was that it distinguishes between the writing of the DOI/American Revolution and the US Constitution.

Biblical citations were WAY more common during the revolutionary time period. But very UNCOMMON during the framing of the US constitution.

But the justifying the American Revolution from the pulpit -- yes it did happen and it's the reason for the Bible's prominence during the revolutionary time period -- begs the question of the kind of the political-theology. Just what kind of "Protestant Christianity" was it? It's not ordinary "reformed Protestantism." It's disproportionately done by unitarian Arminian types like Jonathan Mayhew and Samuel West. And the sermons incorporate Locke's state of nature/social contract and rights teachings to explain why revolution is justified in the face of Romans 13.

You needed ministers to convince the populace that revolution wasn't prohibited even though the plain text of the Bible suggests it is.

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Jonathan Rowe
on July 29, 2018 at 10:57:18 am

I notice you are careful to use "Reformed" rather than "Puritan." Have you read "Christ's Churches Purely Reformed" (2002) by Philip Benedict and "The Reformation" (2003) by Diarmaid MacCulloch? Benedict covers the Continental reformation and MacCulloch covers the English reformation. Christopher Hill's "Puritanism and Revolution" addresses the complex political problems presented by the Reformation in the context of the Stuart notions of the divine right of kings and an establish church that had been rejected by the middle-class.

The Reformation, as opposed to Tudor Anglicanism, was brought to England during the brief reign of Edward VI (1547-53) by Thomas Cranmer and was ultimately established in the Thirty-Nine Articles under Elizabeth I. By 1620, the English Reformation had two major expressions: Presbyterianism, which was brought to Scotland by John Knox in the 1560s and became the Scottish Kirk; and Independency which emerged in the southeast of England.

The Scottish Kirk was pure Geneva Calvinism but English Independency developed from contacts with the Elizabethan Strangers Churches in the English port cities and towns with strong commercial ties to the Low Countries and the Rhine Valley. Thus, English Independency was strongly influenced Theodore Beza (Calvin's associate in Geneva) and by Huldrych Zwingli's Zurich congregation. Many English Independent congregations were also influenced by the old Lollards as well as the Familists and other continental sects such as the Anabaptists and Polish Brethren.

David Underdown's "Pride's Purge: Politics in the Puritan Revolution" (1971) sharply focuses on the political differences between the Presbyterian and Independent factions in the Long Parliament after 1645. The Presbyterians wanted a CoE in communion with the Scottish Kirk under the Solemn League and Covenant and the Independents insisted upon liberty of conscience and majority rule in each congregation. Obviously, Independency was a poor candidate for an established church and between 1649-60 Cromwell's latitudinarianism was the result.

From their inception, Reformed congregations were both republican and revolutionary. They were republican because Calvin's model of church governance was republican; the minister, teacher, deacon, deaconess and elders were elected by the congregation and could be removed by the majority vote of the congregation. They were revolutionary because they denied the authority of the king's established church in matters of conscience. Liberty of conscience and majority rule were hallmarks of these Reformed congregations. When Luther began walking back the Augsburg Confession, Calvin, Beza, Zwingli and Erasmus adopted it and push it forward. Add to that the Reformed requirement of accepting the congregation's covenant as a condition of joining the congregation and you have the essential elements of constitutional democratic republicanism. This model was adapted to secular governments in the Mayflower Compact of 1620, the Fundamental Orders of Connecticut in 1639, the Massachusetts Body of Liberties in 1641, the several Agreements of the People produced by the Levellers between 1647-50 and in the Heads of Proposals of the Commonwealth and Protectorate.

The connection between the Reformation and modern liberal constitutional democratic-republicanism is obscure simply because it so longstanding and so fundamental.

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EK
on July 29, 2018 at 11:41:12 am

If the reformed churches were "republican" like the US Constitution is the problem is the framers of the Constitution forgot to cite them as sources because they didn't.

They weren't revolutionary either from the start. I've read Calvin's Institutes and then the works of Rutherford et al. It's resistance under law, not revolution; though the distinction can get lost and one can lead other. America's Declaration Independence speaks in both languages. And there plenty of reformed Protestants who supported the French Revolution.

Likewise they were very bad on liberty of conscience until sometime in the 18th Century when they followed Roger Williams, the Quakers and then Locke who preceded them.

You can argue they influenced the AR with their resistance theology; but all of the quotations I've seen from them on liberty of conscience side with Calvin in the Servetus affair, and reject Roger Williams' novel notion.

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Jon Rowe
on July 29, 2018 at 16:14:39 pm

Thanks for the excellent instruction and glad to know that some of what I learned is right, that most of the colonists of European descent in the era of the Founding and many important Founders were raised or educated in Congregational, Scotch/Irish Presbyterian and Dutch or German Reformed traditions. I myself was raised in West Virginia in the Scots Presbyterian tradition, which was historically very important in Appalachia.

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Pukka Luftmensch
on July 29, 2018 at 16:27:07 pm

I had meant this as a reply to EK:

Thanks for the excellent instruction and glad to know that some of what I learned is right, that most of the colonists of European descent in the era of the Founding and many important Founders were raised or educated in Congregational, Scotch/Irish Presbyterian and Dutch or German Reformed traditions. I myself was raised in West Virginia in the Scots Presbyterian tradition, which was historically very important in Appalachia.

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Pukka Luftmensch
on July 29, 2018 at 18:06:00 pm

Aw shucks PL, I thought you were thankin' me. There is some truth to what EK writes. I think the issue is as Prof. F. notes in his thesis, there was sectarian diversity in America's Founding era theological landscape. Those New England era ministers who notably argued for revolution -- Jonathan Mayhew, Samuel West, Charles Chauncy -- really were of the unitarian-Arminian variety.

Other parts of the populace may well have been influenced by more traditional-orthodox reformed thought (ala Rutherford, Beza, Zwingli, Knox) and how they understood Calvin's theory of interposition to permit resistance to tyrants under law.

But even with someone like John Witherspoon. I see, after Mark Noll, more Locke and the Scottish Enlightenment as his chief political influences. Not the Calvinist resisters. Even still, the Calvinist resisters may well have been good on why the American Revolution could proceed in the face of Romans 13, they were bad on liberty of conscience.

"It was justice, not cruelty, yea mercy to the Church of God, to take away the life of Servetus, who used such spirituall and diabolick cruelty to many thousand soules, whom he did pervert, and by his Booke, does yet lead into perdition."—Samuel Rutherfurd, A Free Disputation Against Pretended Liberty of Conscience. (1649).

By Witherspoon's time, he had adopted the "right" (that is the "Whig") position that validated liberty of conscience (Roger Williams', that got him kicked out of Mass. by the Puritans to found Rhode Island).

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Jonathan Rowe
on July 29, 2018 at 18:48:04 pm

Gawd, how do you and EK know/remember all that stuff. Spent some time in seminary and have read some Protestant theology, church history and more colonial America. But what little I learned is too much to remember.

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Pukka Luftmensch
on July 29, 2018 at 18:59:30 pm

To Mr. Rowe, your response spans 200 years from Calvin’s Geneva in 1550 to the Second Continental Congress in 1775 so it’s hard to respond to.

Roger Williams had a following in New England, particularly in Boston, New Hampshire and the Plymouth Colony and he was also instrumental in shaping Cromwell’s latitudinarinism. Williams and Cromwell got along quite well and the charter for Rhode Island Williams obtained from Cromwell guaranteed religious toleration and the abolition of slavery.

Rather than being arminians, I tend to think that Bradford, Williams, Wheelwright, Hutchinson, Vane and later in his life Winthrop were simply following the example of John Robinson’s Leiden and Delft congregations in the Dutch Republic.

I think you understate the importance of the Institutes wrt regime change.

You seem obsessed with Servetus, why? He was a dead man no matter whose hands he fell into and, unlike Catholics and Lutherans, Calvinists rarely burnt or hung heretics. Off hand, I can’t think of another heritic they did burn besides Servetus.

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EK
on July 29, 2018 at 19:45:44 pm

PL,

This is one particular area of a handful that I've spent a great deal of time with on a daily basis for over a decade, with some folks who have a likewise interest, but with whom I don't necessarily see eye to eye. Sometimes a bit of non-self published stuff comes my way, which I don't seek because I work overtime at a community college, where publishing isn't part of the job description. But those folks with whom I interact (like you and EK) tend to suffice for the "peer review" part of the process when I self publish.

EK,

I didn't know about Williams and Cromwell; but what I do know is that 1. Latidudinarianism in Anglicanism was an important influence on the American Founding. And that 2. Roger Williams was influential in England. Williams coined the term "Wall of Separation" between "Church and State." Thus many conclude wrongly that that's who Jefferson got it from. But actually Jefferson got it from the Brit. James Burgh who in turn got it from Williams.

My point on Williams was that when he came forth with his notion of liberty of conscience it was the novel position at the time. The Puritan norm was to at least in principle not accept liberty of conscience and to hold that what Calvin did to Servetus was in principle just.

Eventually Williams' novel position because the norm among 18th Cen. Whigs after Locke and during the time of the Enlightenment.

The Arminian-Unitarian thing was a point about the mid to late 18th Century theologians from the Northern part of the colonies who influenced the American Founding. Those from a century plus earlier -- the original colonial settlers -- tended to be more of the orthodox reformed variety.

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Jon Rowe
on July 29, 2018 at 19:59:18 pm

Sorry meant:

"Eventually Williams’ novel position BECAME the norm among 18th Cen. Whigs after Locke and during the time of the Enlightenment."

But you could probably tell. :)

On the Arminian-Unitarian thing in the northern part of America, we distinguish between the colonial planting in the earlier part of the 17th Century and the American Founding in the later part of the 18th. Ben Franklin and John Adams, they were influenced by more enlightened Arminian-Unitarian theology. Their ancestors from100 years before were more traditional Puritan types.

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Jon Rowe
on July 30, 2018 at 11:24:04 am

Another bon mot about Williams, he was Sir Edward Coke's stenographer for a few years around 1620 and Coke subsidized his education at public school and at Cambridge.

Certainly it was Martin Luther who made liberty of conscience the watchword of the Reformation: "Here I stand, I can do no other." Since the Westminster Assembly failed to produce a confession that satisfied the low church Presbyterians and Independents and the high church Anglicans, the default position was the Independent latitudinarianism of the Commonwealth and Protectorate.

Williams' "wall of separation" notion found no real purchaser anywhere until the US Supreme Court began destroying organized religion in the 1940s. The thing about Williams is that he often spoke before thinking things through and before knowing all the facts. All of that was on spectacular display during his time in the Bay Colony. Williams was interesting, intelligent and opinionated but he was a terrible administrator and no leader at all.

Earlier I said that Williams had many followers in Massachusetts. I should have said he, along with Anne Hutchinson, had many sympathizers. They were known as the popular party and from time to time they elected governors like John Leverett, a veteran of the New Model Army, who, along with the governor of New Haven, hid three of Charles I's regicides and who mobilized the colony against a threatened invasion by Charles II. Previously, in 1635, the colony had mobilized against a similar threat from Charles I and, in 1688, the colony threw the appointed governor, Edmund Andros in jail, and actually rebelled against James II on the eve of the Glorious Revolution.

It is possible to trace this strain of democratic republicanism from the Military Company of Massachusetts (now the Ancient and Honorable Artillery Company) formed in 1638 in opposition to the clique of Puritan divines and magistrates who controlled Massachusetts politics from their bases of support in Boston, Cambridge and Salem, to Governor Leverett to Eliza Cooke senior and junior to the Boston Caucus to Samuel Adams and the Sons of Liberty.

The Independents in the Bay Colony had their own notions about the proper modus vivendi between church and state. Their solution was that the church should have no civil authority and the civil authorities should have no authority in church matters. Of course this presented its own problems; what to do about keeping the Sabbath and blasphemy in the context of a collection of church-towns where the overwhelming number of townsmen wanted the Sabbath kept and blasphemy rigorously suppressed?

Another thing to keep in mind is that the New England colonists were intimately involved in the events and changes of government in England between 1620-1692, when Dudley and Mather surrendered the old charter and the Bay became a province with a royal governor. They didn't know from one day to the next if the government in England was going to be an absolute monarchy, a constitutional monarchy controlled by Presbyterians or some kind of republic or military dictatorship controlled by Independents and had to be prepared for any one of them. They were continuously weighing the enormous benefits associated with the privilege of flying the Red Ensign on the high seas against the enormous annoyances associated with the Navigation Acts and the Board of Trade.

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EK
on July 30, 2018 at 11:25:11 am

You seem obsessed with Servetus, why? He was a dead man no matter whose hands he fell into and, unlike Catholics and Lutherans, Calvinists rarely burnt or hung heretics. Off hand, I can’t think of another heritic they did burn besides Servetus.

He was burned? I thought Nagini bit him through the neck.

Oh, wait--never mind....

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nobody.really
on July 30, 2018 at 17:35:33 pm

In an earlier post you noted that even Lutherans had burned heretics. Luther/Protestantism certainly got the ball rolling with religious liberty, but what we venerate in the late 18th century sense of the term "liberty of conscience" was something closer to what Roger Williams argued for, not Luther.

Did Luther believe, as did Williams that non-Christians ought not be subject to a religious test for public office, that religious liberty ought to apply for all, whether Christian or not. Or that Servetus should have been free to publicly deny the Trinity?

By the late 18th Cen. in America even though all of the colonies and then states weren't so "liberal" just about all of the notable Founding Fathers, whether orthodox (like S. Adams, Witherspoon, Sherman), heterodox, (like J. Adams, Jefferson, Franklin) or disputed (like Washington, Madison and others) accepted this baseline as an ideal on the rights of conscience.

They really didn't as far as I can tell directly follow Roger Williams on the matter but rather John Locke and a few others from that period in GB to which you refer. Locke, the Whig opposition folks, the latitudinarians in the Anglican Church who included notable Christians-Deists and theological unitarians as well as more orthodox Calvinistic types.

Williams' theory of separation of church and state opens a new can of worms.

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Jonathan Rowe
on July 30, 2018 at 18:59:35 pm

To Jonathan Rowe and EK re Roger Williams:

L&L had a podcast a couple of months ago with the author of a new book about RW, "Mere Civility."

Due to no fault of the book's author, the podcast was (for me) uninformative as to civility Williams' style because it was more an opportunity for the moderator to engage in fragmented argumentation about pieces of the subject rather than a platform for the author's systematic explication of what she had to say about the whole of her subject.

Does either of you have any thoughts about Williams and the tough-love debate style of mere civility?

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Pukka Luftmensch
on July 30, 2018 at 19:37:15 pm

Certainly it was Martin Luther who made liberty of conscience the watchword of the Reformation: “Here I stand, I can do no other.”

"In April 1521, Luther appeared before Emperor Charles V to defend what he had taught and written. At the end of his speech, the story goes, he spoke the famous words, 'Here I stand; I can do no other. God help me.'

The earliest printed version of Luther's address added these words, which were not recorded on the spot. It's possible they are genuine, but [since the 1940s], most scholars have believed they were probably not spoken by Luther."

Elesha Coffman, quoting Scott H. Hendrix in 1992.

Wikiquotes includes "Here I stand" among Luther's quotes, but also list it as Disputed, adding "Diarmaid MacCulloch, in Reformation: Europe's House Divided (2003), attributes the origins of the quotation to Georg Rörer, the editor of Luther's collected works, who wanted to add a summary of Luther's statement."

Just FYI.

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nobody.really
on July 31, 2018 at 00:19:08 am

So, Christianity should be the only religion promoted by government, yes? That's the impression I'm getting, since all the sources seem to be all about various forms of Christianity. Are there no other religions in this country, or is Christianity the only one which should receive government support?

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excessivelyperky
on July 31, 2018 at 05:35:30 am

Trolling late again, I see.

Well, it's early for me, too, and here I go playing my Billy Goat Gruff to your excessivelyperkey troll monster.

It seems that the unpleasantly dull Mr. Hyde-side of your split personae emerges Hyde-like most often after-hours. That is something you might work on, so I urge you to read the story, "The Strange Case of Dr. Jekyll and Mr. Hyde" by Robert Louis Stevenson (although I doubt literature is your thing) and thereafter make your comments during the daylight hours with the goal of displaying a Jekyll-like amiability and perspicacity.

My second bit of advice is aimed at giving you an opportunity for a get-out-of-jail card. As best I can recall, what you have written here is stupid, childishly stupid, invariably so. In hopes that you might alter your image on Liberty & Law I suggest that you review everything you wrote here and also reflect on everything you ever wrote or said anywhere about a matter of substance and see if you can locate just one complete, coherent, intelligible sentence that sounds to be intelligent and well-intentioned. If your search turns up a candidate, put that sentence in your next comment on Liberty & Law, even if it's not relevant to the matter at hand, and you might just begin the process of turning around your image as a snot-nosed, numbskull adolescent.

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Pukka Luftmensch
on July 31, 2018 at 07:02:41 am

I'll check the book out. I don't know much about that dynamic other than Williams was an oddball. And sometimes oddballs play extremely important roles in new developments while turning out to have tremendous warts.

Think of someone like Newton.

Having a high IQ while being some degree on the autism-Aspergers spectrum can turn out to be a boon. However too much and you are gone. I have a goddaughter who is so far on the spectrum that she is mute and can only communicate through writing. And even there her thoughts tend to be very discombobulated.

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Jonathan Rowe
on July 31, 2018 at 12:39:55 pm

I know but the phrase certainly captures the essence of Luther's position as it was understood at the time. If you have something that suggests Luther was not offering a defense of "liberty of conscience" at the Diet of Worms let me know.

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EK
on July 31, 2018 at 13:19:17 pm

Not necessarily. The Independent latitudinarian formulation of "freedom of religion" may be found in the Rhode Island Charter of 1662, which is "in haec verba" the language used the Cromwell Charter of 1652. It reads in relevant part:

". . . no person within the said colony, at any time hereafter shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of land hereafter mentioned, they behaving themselves peaceably and quietly, and not using this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others, any law, statute, or clause therein contained, or to be contained, usage or custom of this realm, to the contrary hereof, in any wise notwithstanding."

This may be taken as Roger Williams' position in 1652 as it was hashed out in England between Williams, Henry Vane the Younger (one time popularly elected governor of the Bay Colony) and Cromwell. That language was adopted by Charles II when he re-issued the charter in 1662.

You will note that religious liberty is circumscribed by many secular considerations and allows the state to suppress militant secular expressions of minority religious sects.

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EK
on July 31, 2018 at 13:44:30 pm

John Barry's recent "Roger Williams and the Creation of the American Soul" (2012) is reliable but Barry is really too much a Williams partisan vis-à-vis the Massachusetts magistrates. A useful view from the Massachusetts side can be found in Volume I of John Gorham Palfrey's "History of New England" (1865), pp. 406-22 (this is available on line).

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EK
on July 31, 2018 at 14:56:57 pm

Re: Religious liberty and Williams; see my reply to "excessivelyperky" below and note that religious liberty to the extent described in the Rhode Island Charter of 1662 was national policy in England and in most of the American colonies after 1650 (Massachusetts, Connecticut and Virginia were a bit slow getting on board).

The Test Acts and matters related to the Test Acts were chiefly aimed at the Catholic counter-reformation which was aimed at overthrowing Protestant governments. Thus, Cromwell happily re-admit the Jews to England and said he'd could tolerate peaceful Muslims but not militant Catholics.

Remember, the militant Catholics' hands had become very blood hands in England between 1553 and 1605. Remember, too, that Williams was happy to expel troublesome Quakers from Rhode Island during the Quakers' militant phase. I don't know that Williams ever expressed an opinion about Servetus but non-trinitarinism has been a feature of Christianity since about 300 AD and Arianism was the Christianity of the Goths and Theodoric the Great who conquered Italy in 493. Further, Socinianism had been in the air in England and since 1610, it was part of the Polish Brethren's belief system in the 1560s. It is a common place observation that rationalist and biblical literalist Reformed christians like Newton, Henry Marten, John Adams, Benjamin Franklin and Thomas Jefferson exhibited a marked tendency non-trinitarianism.

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EK
on July 31, 2018 at 20:46:17 pm

" It is a common place observation that rationalist and biblical literalist Reformed christians like Newton, Henry Marten, John Adams, Benjamin Franklin and Thomas Jefferson exhibited a marked tendency non-trinitarianism."

I don't know anything about Henry Marten. Though I think your statement "rationalist and biblical literalist Reformed christians" needs a bit of clarification. Yes, all of the figures you mentioned were theological unitarians (again, I never studied Marten). And yes, there were differences in how unitarians approached the biblical canon. Some claimed to be quite biblical in justifying their unitarianism. Others like Jefferson were much more rationalist in their approach to theology (arguably Jefferson and J. Adams were as well).

However, very few people associate theological unitarianism with the label "biblical literalist Reformed christian[ity]." Though yes arguably it is part of theologically liberal (for the time) wing of "Protestant Christianity."

All of these men considered themselves "Christians" and I sure don't deny them that label. But many orthodox Trinitarians do deny them that. This is a controversy I've been involved with for quite some time. I've even presented at Gordon College on Gregg Frazer's book at the request of Mark David Hall on it.

I've told Gregg -- in fact, at the round table -- one of my criticisms of his book (which I strongly endorse with moderate criticisms) is he doesn't cite Richard Price enough as an influence on those Founders whose heterodoxy he meticulously details.

This is how the Arian Price described the dynamic which still exists to this day:

"Newton and Locke were not Trinitarians and therefore not Christians according to the commonly received ideas of Christianity."

Yes "commonly received ideas of Christianity" in the late 18th Century and even still today say non-Trinitarians aren't Christians regardless of how they view themselves or what they call themselves.

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Jonathan Rowe
on July 31, 2018 at 21:12:18 pm

There is also a bit more to the story about religious policy in the American colonies and England from 1650-62 and then onwards than you let on.

I don't think Roger Williams necessarily gets the credit or blame for this, but according to Gerard Bradley:

"Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office."

Williams was in general against religious tests, at least in his rhetoric and was notable for arguing how non-Christians could theoretically make for good civil leaders.

Virginia under the leadership of Jefferson and Madison got rid of religious tests and their state establishment of Anglicanism, and granted free exercise in their VA Statute on Religious Freedom (1786).

England, though they made a great deal of progress on toleration still had a law on the books which made it a crime to deny the Trinity publicly until 1813. That year the unitarians Jefferson and J. Adams celebrated by noting this slamming the Trinity in their private correspondence.

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Jonathan Rowe
on July 31, 2018 at 22:51:12 pm

Wow--that's quite a quote.

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nobody.really
on August 01, 2018 at 00:15:14 am

Given that the only religion discussed in this article and in the comments was Christianity, I think my question was relevant. But I suppose you must descend to personal attacks because you don't have any other rejoinder.

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excessivelyperky
on August 01, 2018 at 11:58:47 am

Henry Marten was perhaps the most radically republican member of the Long Parliament. He was John Lilburne's best connection in Parliament after Cromwell put Lilburne on trial for treason in 1649. Lilburne appeared pro se and told the jury they were final deciders of both the law and the facts. The jury acquitted Lilburne and the cheering spectators carried "Freeborn John" out of the courtroom on their shoulders.

Like Col. Thomas Rainborowe's brother, William, Marten was often called a Ranter. Here it is interesting to note that John Winthrop became Thomas and William Rainborowe's brother-in-law in December 1647 when Winthrop married their widowed sister, Martha Coytmore, in Boston. Winthrop's son, Stephen, had already been commissioned in the New Model Army. He rose quickly and died in Scotland a Lt. Colonel in what had formerly been Sheffield's regiment of horse. Things might have been very different in both England and New England had Winthrop and Col. Rainborowe not died so young and so close together in 1648-49.

Rhode Island was a very badly run colony. Williams was simply not interested in running anything beyond his trading post and keeping up with his correspondence. The colony appears to have been little more than a loose confederation of three separate plantations and for years at time no records were kept. So, notwithstanding Williams' lovely ideas and its liberal charter, Rhode Island soon became known chiefly for its disorder, smugglers and slave traders. A cautionary tail about what can happen when soul liberty and individual autonomy are allowed to reign supreme.

I'm always suspicious of Catholic law professors from Notre Dame complaining about anti-Catholic bigotry in England and its colonies in the 17th C. They act like Holy Mother Church was an innocent by-stander in all that transpired.

You seem to be treating the question of religion during this period as something that can be usefully considered in isolation from the recent history and politics of the time. In the 17th C., to a large extent your religion defined your politics.

John Adams was a member of the Unitarian church in Braintree. Like John Robinson, he used the terms old light and new light to describe the difference between his new congregation and his father's congregation so I tend to think of Unitarianism as just another of the many expressions of 17th C. English Independency. Did Jefferson use the same language? Of course, Harvard Divinity School became a Unitarian divinity school in 1816 and I don't know that Unitarians were ever much discriminated against after 1700 in New England.

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EK
on August 01, 2018 at 16:11:24 pm

"You seem to be treating the question of religion during this period as something that can be usefully considered in isolation from the recent history and politics of the time. In the 17th C., to a large extent your religion defined your politics."

I don't think I do this. I think Protestantism started of as protesting, dissenting and reforming. And ultimately what ends up being credited to enlightenment rationalism in America was something that began with and never quite escaped the logic of Protestant individualism.

The same can be said of certain forces in England at the time; but we have to be selective because the Whigs won in America; the Torys lost.

There was tremendous discrimination by the "orthodox" against unitarians in New England and elsewhere in America and in England in the 17th and 18th and to some extent the early 19th centuries.

Many unitarians during this time had to remain in the closet about their theology until the law and culture became more freedom of conscience oriented. Yet theological unitarians played a disproportion role in leading the events of the American Founding.

Jefferson didn't use the new light/old light language which I think was more particular to New England. Jefferson was an Anglican-Episcopalian fromVA and there were theological unitarians in the low church latitudinarian wing of said church.

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Jonathan Rowe
on August 24, 2018 at 23:46:33 pm

[…] ideology motivating this campaign against traditional American practices and culture. The second is What the Court Misses: Religion, Community, and the Bases of Ordered Liberty, which focuses on what these decisions miss – the necessity of religious associations for […]

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What I Did on My Summer Vacation – Full Magazine
on November 01, 2018 at 10:29:49 am
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Noah Andrew Brown
on November 01, 2018 at 10:32:58 am

My philosophy is this... Don't ever, for any reason, do anything, to anyone, for any reason, no matter what, or where, or who, or who you are with, or where you are going, or where you've been, ever, for any reason whatsoever

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Lucas Bloss

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