Religious Liberty: AG Barr vs. Jeffery Toobin
AG Barr recently spoke eloquently on religious liberty. Progressive legal analyst Jeffery Toobin vomited canards and bald assertions in response.
In a speech at Notre Dame Law School on October 11, Attorney General William Barr asserted that government needs to prioritize protecting religious freedom. To summarize briefly, Barr observed that the Founders held that the new country needed to be built upon Judeo-Christians moral underpinnings, in large part because those values were inextricably intertwined with our being a “free” and functioning nation. For the past half century or more, though, progressives have been attacking these religions, seeking to drive them from the public square while offering no viable alternative. The cost of that to our society has been “grim.” Thus we must act to protect religious liberty in this country from the progressive onslaught.
Barr makes so many insightful and nuanced points of such great importance to the character and functioning of our nation, and he does so with such elegance, that I cannot possibly do his speech justice in any sort of summary. For instance, Barr points out that the Judeo-Christian religions provide a “shared set of moral values” flowing from a transcendent God that teach us both restraint and positive action in a way beneficial to society as a whole. Says Barr, “but, if you rely on the coercive power of government to impose restraints, this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.” It really is a speech that every American should read or watch. You can read the full text of his remarks here, and you can watch the video below:
Enter Jeffery Toobin, a secular progressive who could himself benefit from a bit of morality and self restraint. Jeffery Toobin is many things. He is a Harvard undergraduate with a degree in history . . . who seems to have very little grasp of it. He is a Harvard law graduate who wildly applauds judicial activism. Looking back at just a bit of his recent work, in 2014, Toobin cheered on Justices Ginsburg, Sotomayor and Kagan for their hard progressive stance in favor of the Obamacare abortifacient mandate and against religious freedom in the Hobby Lobby case.
In August 2019, Toobin invented and baldly asserted an alternative history wherein the Second Amendment had “always” been understood to only apply to state militias. According to Toobin, it was the modern NRA that falsely advanced the belief that the Second Amendment protected a private right to “keep and bear” arms. Thus, Toobin wrote that there is no need for a future Supreme Court to honor the precedent of the Court’s decision in Heller, that the Second Amendment creates an individual, private right to keep and bear arms. Of course, as a progressive for whom ends justify the means, Toobin’s principles are purely situational. Toobin expresses a profound respect for precedent when it comes to such progressive sacraments as abortion.
In short — in a way that is both sad and unsurprising — Toobin is the paradigmatic example of the poor education quality found in both the undergrad and law programs Harvard offers.
So let’s take a look at Toobin’s reasoning for opining that Barr’s speech was the “worst speech by an attorney general in modern history” and that it was “historically illiterate, morally obtuse, and willfully misleading.” Toobin asserts that “Barr claims the mantle of victimhood” for Jews and Christians in this country “in order to press for a right-wing political agenda.” Says Toobin:
In a potted history of the founding of the Republic, Barr said, “In the Framers’ view, free government was only suitable and sustainable for a religious people—a people who recognized that there was a transcendent moral order.” Not so. The Framers believed that free government was suitable for believers and nonbelievers alike. As Justice Hugo Black put it in 1961, . . .
Whoa. We’re talking about the Founding . . . and Toobin jumps to a 1961 quote? And indeed, a 1961 quote by the activist judge who led the judicial attack on recognizing that, from its inception, America accommodated religion in the public square? Toobin is attacking a straw man, not Barr. No one, including Barr, contests that our nation has always been equally open to believers and nonbelievers. But that was hardly Barr’s point, which is that religion had a place in our public square at the Founding and that it should have one now.
Indeed, I won’t bother with the Hugo Black quote but to say that his quote is a restatement of the law as existed in 1961 after progressive justices wrote Thomas Jefferson’s offhand comment about “a wall between Church and State” into the First Amendment, then used it to begin the push of the Judeo-Christian religions out of the public square. Toobin’s choice of quotes is, to say the least, suspect. Actually, it is a show of selective quotes so comic it would fail a high school history exam (probably tougher than a Harvard one). I say that because Toobin jumps to Justice Black while simply ignoring that Barr backed his conclusion by actually quoting one of the preeminent Founders:
As John Adams put it, “We have no government armed with the power which is capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.”
Barr could have added numerous other quotes from the Founders to that same effect. For but one, George Washington, who was never a doctrinaire believer, nevertheless warned that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
And yet Toobin claims “not so.” It is important to note that Toobin is only telling half the story with when he offers his progressive dogma as absolute truth. He is the equivalent of a child with his fingers in his ears and stamping his feet, refusing to even address that which he does not want to hear or admit.
As a threshold matter, our historic record establishes with clarity that our Founders wholeheartedly objected to a state religion as a litmus test for participating in society or government. No surprise there. America came into being not long after Europe had emerged from centuries of religious wars that flowed from the Reformation. Liberal philosophers of the era, such as John Locke in A Letter on Toleration, blamed those wars not on religion, but on the state trying to coerce men into a particular religious belief for the benefit of the state. Indeed, many of the Founders were descended from men and women who had left England to escape a state-mandated Christianity that clashed with their own belief systems. But that does not mean, as Toobin would assert, that our Founders intended to drive a generic Judeo-Christianity from the public square. History shows unequivocally to the contrary.
Three examples illustrate this important point. The first example concerns events at the First Continental Congress. As the Founders’ own histories indicated, America was created in large measure by sects collectively referred to as Religious Dissenters. What they were dissenting from was Anglicanism, the state religion in Britain and Ireland. Colonial America depended on tolerating different belief systems — in no small measure because not only were the majority of people in America of 1787 religious dissenters, but their varied Christian sects strongly disagreed with one another on on specific points of dogma as well. Which brings us to that First Continental Congress. Because the men attending were believers, their first order of business was to determine whether to open that first meeting with a prayer. As John Adams explained the problem in a September 16, 1774, letter to his wife, Abigail:
When the Congress first met, Mr. Cushing made a Motion, that it should be opened with Prayer. It was opposed by Mr. Jay of N. York and Mr. Rutledge of South Carolina, because we were so divided in religious Sentiments, some Episcopalians, some Quakers, some Aanabaptists, some Presbyterians and some Congregationalists, so that We could not join in the same Act of Worship.-Mr. S. Adams arose and said he was no Bigot, and could hear a Prayer from a Gentleman of Piety and Virtue, who was at the same Time a Friend to his Country. He was a Stranger in Phyladelphia, but had heard that Mr. Duche (Dushay they pronounce it) deserved that Character, and therefore he moved that Mr. Duche, an episcopal Clergyman, might be desired, to read Prayers to the Congress, tomorrow Morning. The Motion was seconded and passed in the Affirmative. . . .
Accordingly next Morning [Mr. Duche] appeared with his Clerk and in his Pontificallibus, and read several Prayers, in the established Form; and then read the Collect for the seventh day of September, which was the Thirty fifth Psalm. [A Prayer For Rescue From Our Enemies]
You must remember this was the next Morning after we heard the horrible Rumour, of the Cannonade of Boston.-I never saw a greater Effect upon an Audience. It seemed as if Heaven had ordained that Psalm to be read on that Morning. . . .
A second example of the way in which our Founders eschewed state-enforced religion, but promoted a generic brand of Judeo-Christianity is written into the Constitution itself. Article VI of the Constitution reads, in relevant part:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
So, literally in the same sentence – a point that Barr makes in his speech – in which the Founders eschewed religious tests, they also invoked the power of religion as part of the oath. To appreciate this, one has to understand that oaths in that time were not just mere promises. They were, instead, commitments before God. To quote from the Heritage Foundation:
The Framers’ general understanding was that proscribing religious tests did not necessarily remove the religious significance of the general oath. “The Constitution enjoins an oath upon all the officers of the United States,” Oliver Wolcott noted at the Connecticut ratifying convention. “This is a direct appeal to that God who is the avenger of perjury.” Customarily, officeholders add the words “so help me God” at the completion of their oaths.
The third example of the general religious commitment behind the Founding occurred when many of the same people involved in drafting the Constitution were also involved in passing the Northwest Ordinance. James Buckley addressed this in a speech on religious freedom that, like Barr’s own speech, would be well worth your time to read:
And so it is not surprising that the Congress that adopted the First Amendment also reenacted the provision of the Northwest Ordinance which declares that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged;” and early Congresses proceeded to make grants of land to serve religious purposes and to fund sectarian education among the Indians.
In sum, as understood by those who wrote it, the First Amendment did not forbid the government from being biased in favor of religion as such so long as it championed none. Nor did it require that the state be insulated from religious principles and influences.
After his progressive rewrite of our Founding to erase those things he wants to ignore, Toobin then takes Barr to task for portraying the Judeo-Christian religions as being under assault in America. According to Toobin, there is no progressive war on religion, and any complaints about such a thing are no more than an attempt to claim “the mantle of victimhood in order to press for a right-wing political agenda.” The only victims are those officially sanctioned by the progressive party apparently.
To say that there is no progressive war on religion turns reality on its head. Beginning with the French Revolution, socialism in one form or another — with American progressivism being just the latest manifestation — has been at war with the Judeo-Christian religions for over two centuries. The number one socialist / progressive goal since the inception of those movements has been to drive religion from the public square. And while the assault on the Judeo-Christian religions in America only began in the early 20th century, beginning in the 21st century under Barack Obama progressives became even more militant. While they once relied below-the-radar, non-democratic methods such as using activist judges to create “a wall between Church and State” to chip away at religious freedom, they now openly pass laws designed to drive the religious out of the public square.
I traced this history some time ago in another post that bears repeating here. To baldly claim that religion is not under assault from the progressive left is a mind-numbing canard:
[A]t the same time as Jefferson and Madison were crafting our First Amendment, half a world away, Christianity’s mortal enemy, socialism, was being born in the crucible of the French Revolution. One of the first acts of the Revolutionary government was to initiate a systematic and brutal war on the Catholic Church and its clergy. As recounted at the American Spectator:
The secularists of the French Revolution regarded the Roman Catholic Church as the last obstacle to atheism’s final triumph. Blurting this out, the French dilettante Denis Diderot proposed to his fellow revolutionaries that they strangle the last priest with the “guts of the last king.”
Socialism is a radical ideology that sprang up largely in response to the ills of the industrial revolution. The goal of socialism is to deconstruct traditional Western society and remake it under the auspices of an omnipotent government that would use its police powers to create a new order of ostensible social and economic equality. Socialists replace God with government as the source of morality. As one particularly observant commentor at Legal Insurrection recently opined:
In any left revolution, be it progressive, bolshevik, socialist, fascist, maoist, or bolivaran, it is necessary to knock down organized religion. The Catholic Church competes for the hearts and minds of people and does so effectively, as do the evangelical Protestant churches, etc. Further, the Church is organized and so can put out a message of opposition. So at some point the revolution has to take the Church on, or lose.
And yet another immutable truth of history is that, as socialist governments fully consolidate power, they invariably devalue individual human life. Much of the 20th century’s history is written in the blood of over 100 million people slaughtered as part of socialist experiments.
Sixty years after the French Revolution, Karl Marx, socialism’s greatest philosopher, famously wrote in his Critique of Hegel’s Philosophy of Right that religion is the “opium of the people” and that “[t]he abolition of religion as the illusory happiness of the people is required for their real happiness.” The British socialist party wrote in their 1911 manifesto that “it is a profound truth that Socialism is the natural enemy of religion.” Lenin, the father of the Soviet Union’s bloody experiment in Communism, wrote in 1905, “The modern class-conscious worker, reared by large-scale factory industry and enlightened by urban life, contemptuously casts aside religious prejudices, leaves heaven to the priests and bourgeois bigots, and tries to win a better life for himself here on earth.” Lenin further noted that “every socialist is, as a rule” an “atheist.” And Hitler himself was of like mind – ““National Socialism and Christianity cannot co-exist together.”
And lest there be any doubt, there was Dutch socialist philosopher, Anton Pannekoek, who wrote in a 1907 essay – interesting in part for its incredibly naive belief in an incipient socialist utopia:
The socialist teachings have inoculated the laboring class with an entirely new conception of the world. The realization, that society is in a process of continual transformation, and that misery, poverty, exploitation, and all the suffering of the present are only temporary and will soon yield to an order of society, to be inaugurated by his class, in which peace, abundance, and fraternity shall reign, this realization must revolutionize the whole world conception of the laborer from the ground up. The theory of socialism furnishes the scientific foundation for this world conception. Political economy teaches us to understand the internal laws, which move the capitalist process, while historical materialism lays bare the effects of the economic revolution upon the conceptions and actions of people. And this stands irreconcilably opposed, as a materialistic doctrine, to religion.
Socialism arrived on U.S. shores in the mid 1870’s. One of its early adherents was the father of Margaret Sanger, the founder of Planned Parenthood. Ms. Sanger, in a 1915 speech to the Fabian Society in London, described her father as “one of the early pioneers of Socialist thought” and noted that she herself was “rocked in the cradle of socialism.”
Sanger ultimately established Planned Parenthood to promote both contraception and abortion. As to abortion, Sanger, a nurse by training who worked among New York City’s poor at the turn of the 20th century, saw many poor women suffering from “dangerous and illegal abortions.” In part motivated to help these women, and in part because she was a eugenicist who wanted to limit the birth rate of blacks, she became the leading advocate for abortion.
Sanger’s motivation in pushing contraception overlapped with her motives for advocating abortion, but also went far beyond. She wanted to remove from sex any hindrance of ethical and moral limits, and, in order to promote sex among women, make sex free of the physical consequence of pregnancy.
[Sanger judged] the necessity of breaking down the “codes that have surrounded sexual behavior in the so-called Christian communities, the teachings of the churches concerning chastity and sexual purity, the prohibitions of the laws, and the hypocritical conventions of society.”
As a consequence, Sanger became a direct opponent of Christianity, especially the Catholic faith, for the Church was the greatest obstacle opposing the release of the “dynamic energy” of sexuality, and such obstruction for Sanger was “nothing less than foolhardy.”
“Instead of laying down hard and fast laws of sexual conduct, instead of attempting to inculcate rules and regulations,” as the Church had done, “the teacher of Birth Control seeks to meet the needs of the people,” she wrote.
Neither Sanger nor socialism itself was part of the original feminist movement. That movement concerned itself with seeking equality before the law for women, as well as securing their right to vote. The feminist movement didn’t become radicalized until American socialists adopted feminism in the 1950’s and 1960’s and, along with American socialism’s than recent adoption of the civil rights movement, made radical feminism part of their raison d’etre. It was then that Sanger’s goals and ideas became mainstream as part of the “second,” and now “third wave” of the radicalized feminist movement.
The black civil rights movement, though co-opted and bastardized by the socialists in the 1960’s, was long supported by the right – indeed, far more so than by the left. Likewise, gender equality and the right of women to be free from discrimination saw bipartisan support. So to the extent that calls for greater protections in these areas were mainstreamed, our nation was able to affirmatively act on them in the 1960’s.
(Just as an aside, let me add here that the Socialist left in the U.S. has, in the past two decades, added others to their stable of victim classes that seek to drive Christianity and Judaism from their place in America – the far left wing of the gay rights activists and the political Islamists who dream of a world without Christians or Jews – or for that matter, gays or godless socialists.)
At any rate, the radical aspects of the socialist movement – attacks on religion, as well as pushing for unrestricted abortion and contraception, saw limited success at the ballot box through the mid-20th century. Consequently, socialists turned to the Courts to achieve what they could not through legislation.
In the mid-20th century, the American socialist left used the ACLU – an organization specifically formed to further socialism and communism – to bring a series of Court cases designed to remove religion from the public square and elevate the ethos articulated by Margaret Sanger. The socialists sought judicial activism – and by and large, the Courts complied. Though the Constitution says nothing about abortion or contraception, thus leaving the matters to the states and majority rule by default, the left asked the Court to enshrine abortion and contraception as federal Constitutional rights. Between 1965 (Griswold) and 1972 (Einstadt), the Supreme Court found a “right to privacy” in the “penumbras” of the Constitution such that access to contraception was made a Constitutional right. And then in 1973 (Roe), the Supreme Court, found the same for abortion.
As to religion, it has been under sustained attack by the socialist left through our Courts since 1947 (Everson). wherein the Supreme Court read the 1st Amendment clause prohibiting the federal government from establishing a national church to mean “a wall of separation between Church and State.” Where for almost two centuries there had been fairly substantial involvement of a generic Christianity in the public square, the Supreme Court, in a series of subsequent cases, changed that completely. In 1963 (Engle), the Court ruled prayer in school unconstitutional. In 1989 (Allegheny County), the Court ruled that a creche, prominently displayed in a Courthouse at Christmas, was unconstitutional. In 2005 (McCreary County), the Court held unconstitutional displays of the Ten Commandments in several Kentucky courthouses. But perhaps the biggest victory the left gained through the Court’s was the 2002 decision in Lawrence v. Summers, a case seeking to hold Texas’s laws against sodomy unconstitutional. Implicit in the holding of that case was a finding that Christian morality, standing alone, is no longer a “rational basis” to uphold our laws. The potential ramifications of that decision have not yet begun to be plumbed.
The election of Barack Obama brought to the White House the first true child of America’s socialist movement. And though he nominally claims to be a Christian – he claims conversion not to the words of the bible, but to the political polemics of Rev. Jeremiah Wright – he has also publicly proclaimed that we are no longer a Christian nation. That was an aspirational statement at the time. It is difficult to believe that Obama’s Christianity is anything other than a bare patina on his political ambitions.
Regardless, it is no surprise now to see Obama attempting to bring to fruition the socialist goal of weakening religion as an important force in America. With Obama in power, the socialist left has won at the ballot box and need not rely on the Courts, at least for the moment. Obama would see the Margaret Sanger’s radical socialism become the moral underpinning of our laws, not merely as an alternative to Christianity as they exist now in our law, but over top of it. That is what Obama is doing with his HHS mandate to force all Christians, including Catholic institutions, to fund healthcare that will provide contraceptives, sterilizations, and plan-B abortion pills free to all women covered by the plan. And for Obama to portray this as a moral good – saying that to do anything else would be to discriminate against women – is simply obscene.
Since I wrote the above, the five unelected polituburo members masked as Supreme Court judges decided to amend our Constitution and make gay marriage a Constitutional right (Obergefell). This is the cudgel the progressives are using to destroy Judeo-Christianity in America, but not the only one. As Barr writes in his speech:
Law is being used as weapon in a couple of ways.
First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.
. . . [M]ilitant secularists today do not have a live and let live spirit – they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience. . . .
the battleground has shifted to the states. Some state governments are now attempting to compel religious individuals and entities to subscribe to practices, or to espouse viewpoints, that are incompatible with their religion.
Ground zero for these attacks on religion are the schools. To me, this is the most serious challenge to religious liberty.
For anyone who has a religious faith, by far the most important part of exercising that faith is the teaching of that religion to our children. The passing on of the faith. There is no greater gift we can give our children and no greater expression of love.
For the government to interfere in that process is a monstrous invasion of religious liberty.
Yet here is where the battle is being joined, and I see the secularists are attacking on three fronts. . . .
I will not go further into Barr’s speech. To see the clarity with which he identifies and explains those three fronts, you should just read his speech. I think Barr’s topic is of critical importance, and, as he says “I do not mean to suggest that there is no hope for moral renewal in our country. But we cannot sit back and just hope the pendulum is going to swing back toward sanity.” The deeply disingenuous Jeffery Toobins of the world need to be challenged and defeated, or they will win . . . and this country will rue their victory.
