In Espinoza, the Court elevates a principle that finds no mention in the text of the Constitution.
Denise A. Spellberg, Associate Professor of history and Middle eastern Studies at the University of Texas at Austin, is the author of the highly regarded work, Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha Bint Abi Bakr. She was involved in controversy in 2008, when she reviewed the galleys of a novel, The Jewel of Medina, for Random House, and criticized the work on many grounds including warning a number of times that the book might instigate violence among some Muslims, specifically against Random House and its employees. Random House then withdrew publication of the book, but the novel was subsequently published in a number of countries, including the United States.
In this work with the eye-startling title, Thomas Jefferson’s Qur’an: Islam and the Founders, Spellberg investigates all manner of references among the founding generation to Islam in order to assert two themes 1) that the founders’ references to “imaginary Muslims” led them to include other minorities, such as Jews, Catholic Christians, and Deists, as full citizens, and 2) that America is now in the grip of “Islamophobia,” and many Americans are attempting to “disenfranchise” Muslims from their rights as full citizens. Although her research, interspersed with many tangents, brings forth interesting facts regarding the founders’ contacts with and ideas about Muslims, in the end, her volume proves neither thesis. In fact, it is her second assertion, an attack of Islamophobia, that informs the volume and makes much of it like “law office history,” i.e., the marshaling of those historical facts that can support a policy position. That clarifies the work’s objective, but at the cost of making it a piece of advocacy rather than that of open historical enquiry. In this work, the political tail wags the historical dog.
Her Preface, Introduction, and Conclusion clearly spell out the objective of the work, which is an indictment of current American attitudes toward Islam. No where does she indicate that the current American dismay with Islam comes from the seemingly unending human horrors being committed around the globe by many of Islam’s adherents, whether or not they be misguided. She writes, for example, how in 2011, an “addled pastor” had burned a number of Qur’ans in protest of an impending establishment of a mosque resulting in “disastrous consequences in Afghanistan.” The author fails to point out that the “disastrous consequences” was the attack by a mob on a U.N. outpost and the killing of seven foreigners. She obviously blames the insensitive pastor (as she criticized the would be Random House author), but no where does she utter a condemnatory sentence about what was a lynch mob that murdered seven innocent persons because they believed their religion demanded such a response.
In the Introduction, she discloses her target: “Particularly in the wake of 9/11 and the so-called War on Terror, a public discourse of anti-Muslim bigotry has arisen to justify depriving American Muslim citizens of the full and equal exercise of their civil rights.” Her Conclusion (“Why Can’t a Muslim be President?”) falls to the level of a political screed, describing those few violent acts against Muslims, the Patriot Act, the movements against legal recognition of foreign law including the Shari’a, and the statements by those who find Islam a code of political violence.
But the facts belie her rhetoric. Many more Americans have been killed in this country by Muslims operating on what they believed to be their religious principles, than have there been Muslims who have been similarly victimized. According to FBI statistics, far more “hate crimes” are committed here against Jews than against Muslims, even though there are likely more Muslims here than Jews. And as for the charge that there is a “conspiracy” (her word) to deprive Muslims of their civil rights, our Constitution has, for the main part, stood as bulwark against that. In fact, compared to the West, the only place an Arab Muslim can enjoy freedom of speech, democracy, and civil rights in the Middle East is Israel, not in an Islamic state.
Turning to the historical portion of her work, we find that her thesis is formulated in two ways. The first and more modest is that the founders really did think that Muslims could be full citizens. With the no religious test clause in the original Constitution (Art. VI), that conclusion is hardly a surprise or a ground breaking revelation. On the way to proving this unsurprising fact, Professor Spellberg exhibits a wide-ranging amount of research. Unfortunately, the author includes too much and requires the reader to trek seemingly through all that she has unearthed, even though much of it is tangential. Nonetheless, her discussion of the development of the translations of the Qur’an, the evolution of thinking about Islam in the West, and particularly the diplomacy surrounding the disputes with the Barbary powers, was valuable.
The second formulation of her historical thesis is more ambitious, namely, that influential framers, such as Jefferson, used “imagined Muslims” (for few of the founding generation had ever met any) as a stalking horse to include the more despised minorities of Jews and Catholics as enjoying (at least religious) rights as American citizens. It is as if Muslims—or the concern of what to do with them if they ever came to our shores–guided the framers towards their goal of religious toleration within the polity.
This is a more interesting inquiry, but the author ‘s pursuit of the issue runs into a number of methodological difficulties. First, in the main, she finds those who opposed giving rights to Muslims or Catholics or Jews were mainly among the anti-federalists. This is a weak reed. After all, the anti-federalists lost, and as Donald Drakeman has pointed out (Church, State, and Original Intent), almost nobody actually feared that a religious establishment would come about, and the First Amendment merely confirmed that near unanimous sentiment. The fact is that, except in one phrase in the Constitution of Massachusetts, all that “establishment” meant was in directing certain tax monies to the clergy of a particular sect. Many leaders from Connecticut and Massachusetts insisted that tax provisions were not even an “establishment” of religion. The battle for religious liberty had already been won, and except for some rear guard action against the Baptists in Virginia, it was no longer an issue.
This leads to a second methodological difficulty. The author seems to conflate religious liberty with political standing and political rights. They are separate, and the political rights of some religious minorities, racial minorities, and women would be the battleground of the nineteenth century in the states. But regarding the federal government, the “no religious test clause” settled the matter. From 1789 on, when the Constitution went into effect, a Muslim had just as much right to be President, a Congressman or a Senator as anyone else. There just is no issue here.
Even looking at the few references when the rights of “the Turk” was championed along with that of the Jew and the Catholic, many read like a rhetorical flourish. The author often presumes that the word “infidel” (whether the person using the term was defending the infidel’s rights or warning of his presence) was a reference to Muslims. But it was nothing of the sort. As the author herself notes, Muslims were mostly imagined. Infidels were real: they were Deists or atheists. On the other hand, religious adherents of all sorts were accepted, even if grudgingly so.
Religious pluralism in America came about first through an accommodation among Protestants, which was led by Protestant ministers, and not, as the author seems to assert, primarily through the influence of John Locke. But the principles of Protestant religious accommodation were then quickly extended to Jews and Catholics in their religious liberties, and eventually into politics. Deists and atheists remained, for much of early American history, beyond the pale of political respectability. As Tocqueville noted, “In the United States, if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”
This leads to a third methodological difficulty. The author presumes that the quest for religious liberty and inclusion came about through the “ideal of separation.” In this, she anachronistically reads back the notion of separation of Church and State, which never became an issue until the late the nineteenth century, into the discussions among the framers. She does not, unfortunately, evince much familiarity with the rich historical research over the last twenty years of what the role of religion was at the time of the founding. She evidently seems to think that the only way Muslims can be fully accepted is in a secularist regime, which the founders never envisioned.
There are disappointing lacunae in the work, beyond not referencing the recent scholarship on the role of religion at the founding. She does not show an understanding of the Constitution’s 3/5ths clause (using the old canard that a slave was “three-fifths of a person”). She does not reference Tocqueville, whose understanding of the political and social role of religion in America remains seminal. She devotes an unusual amount of space to the influence of John Leland on the subject of religious liberty and non-establishment. In that chapter, entitled, “Beyond Toleration,” she notes Leland’s and James Madison’s idea that toleration should give way to rights: “religious liberty is a right and not a favor.” Yet the most famous statement of that concept is not in the book. It is in the letter of George Washington to congregation of Touro synagogue in 1790:
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
Had that quote been included, it would have undercut Spellberg’s thesis. For here was the esteemed hero of the nation to whom all looked for an example, not, like Leland, a Baptist minister the extent of whose role in defining religious liberty has been controversial. And unlike Leland, who spoke of inclusion of imaginary Muslims, Washington defined religious liberty once and for all, and he spoke to real Jews. That settled the issue, and not some tenuous connection to “imagined Muslims.” No, the framers did not need to call upon “imagined Muslims” to protect Jews and Catholics. They said so in real terms.
What of the title, Thomas Jefferson’s Qur’an? In the chapter, “What Jefferson Learned—and Didn’t—from His Qur’an,” she searches for the answer. Jefferson purchased a Qur’an in 1765, a translation by George Sale (which Spellberg credits as being competent). That Qur’an either survived a disastrous fire that destroyed Jefferson’s library in 1770, or he later bought a duplicate. Jefferson took extensive notes from the books he read, but as Spellberg discovered, there was “virtually none” regarding Sale’s work.
The author then speculates on how the Qur’an might have influenced Jefferson’s thinking anyway. But her research reveals that Jefferson had absorbed negative views on Islam from Voltaire and others. He thought Islam demanded state recognition in the way Catholicism and Anglicanism did. His inclusion of Muslims in his scheme of religious liberty came first from Locke and then later, beyond Locke, to his idea of a state quite neutral in regard to religion.
Beyond placing his initials on a number of pages, as he habitually did to indicate ownership, there turns out to be precious little evidence of Jefferson deeply reading his translated Qur’an, the teasing title of the book notwithstanding. She does emphasize that Jefferson may have respected Islam’s “uncompromising” monotheism, with a respected but lesser place for Jesus, as he himself thought. I note here that, despite Jefferson’s and Islam’s notion, Christianity’s God is also an “uncompromising” monotheism, the Trinity being an additional revelation describing the inner life of this One God.
Jefferson’s monotheism leads Spellberg to write a most startling sentence in her conclusion: “To many of his political opponents, Jefferson may have been our first Muslim president.” But of course, almost no one thought he was a secret Muslim, but rather an “infidel,” that is, either a Deist or an atheist. She continues with this mistaken conflation of “infidel” with Muslim: “Three years after his election, fears of Jefferson’s ungodly and possibly Islamic presidency persisted. In January 1803, a Walpole, New Hampshire newspaper editor observed that ‘every candid friend of religion must…be convinced from Jefferson’s own writings that he is an infidel.’” After all this, despite the author’s assertions, one has to conclude that regarding Jefferson’s affinity to Islam and his possible inspiration from the Qur’an, there is no there there.
In the end, as at the beginning, her fear of “Islamophobia,” directs her research to finger wave Americans: The founders were tolerant of the idea of Muslims as equal citizens and you should be too! The charge of Islamophobia is, at best, a woeful exaggeration, for after the trauma of 9/11, the American people, led by President George W. Bush, chose not to hate. It was an act of historic magnanimity. One can only imagine what the reaction would have been in an Islamic country, where people kill because of cartoons, if a group of American terrorists had done the same.