“The very possibility of historical scholarship as an enterprise distinct from propaganda requires of its practitioners that vital minimum of ascetic self-discipline that enables a person to do such things as abandon wishful thinking, assimilate bad news, discard pleasing interpretations that cannot pass elementary tests of evidence and logic, and, most important of all suspend or bracket one’s own perceptions long enough to enter sympathetically in to the alien and possibly repugnant perspectives of rival thinkers.” Thomas L. Haskell, Objectivity is Not Neutrality
Purpose: This page is dedicated to exposing the misuse of history in constitutional law, particularly concerning the Religions Clauses of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof.”). Part one of this page explains the problem and the motives behind the current abuse of history. And Part two includes examples of influential scholarly works related to the Religion Clauses in order to expose the poor scholarship. The focus of the work examined is one legal scholarship and not popular histories written by non-professionals such as David Barton. There have been plenty of articles and books exposing Barton’s mischief, but there has been less attention to the work done by professional legal scholars. (note: I did write a couple of blog posts exposing the bad scholarship by the non-scholar John Harding Peach in his “novel” Thomas Jefferson: Roots of Religious Freedom.)
Part I: The Problem
Part II: How Not to do History
- First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786”
- I. Introduction
- II. James Madison and the Virginia Declaration of Rights (1776)
- III. The Virginia Dissenters Campaign Against Religious Establishments (1776-1778)
- IV. Stalemate: The Defeat of Jefferson’s Bill for Establishing Religious Freedom and a Bill “Concerning Religion” (1779)
- V. The Final Showdown Against Religious Establishments (1784-1786)
- Abusing History: Original Intent, the First Amendment, and Religious Freedom: A Critique of Vincent Phillip Muñoz’s “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation”
- I. Religious Establishments in the States: Virginia vs. Massachusetts
- II. Ratifying the Constitution: The Anti-Federalists Sought to Protect State Religious Establishments?
- III. The First Federal Congress and the Making of the Establishment Clause
Related links:Conservatives’ New Frontier: Religious Liberty Law Firms (The New York Times, July 7, 1995)The Angry New Frontier: Gay Rights vs. Religious Liberty (The New York Review of Books, May 7, 2015).
“The Man who Studies the Spread of Ignorance,” by Georgina Kenyon (BBC, Jan. 6, 2016)
“How Corporate Dark Money is taking power on both sides of the Atlantic,” by George Monbiot, The Guardian (February 3, 2017)
“Weaponizing the Past: How Should the Courts Use History?” by Jill Lepore, The New Yorker (March 27, 1017).
More mischief from a politically motivated think tank: “Sowing Climate Doubt Among School Teachers,” Curt Stager, The New York Times (April 27, 2017).
“The Rise of the Thought Leader: How the superrich have funded a new class of intellectual,” by David Sessions, The New Republic (June 28, 2017)