The Wall Between Religion and the People

Today, the secular nature of the federal government is ingrained in our understanding of how it affects our lives and relationships. Our understanding often flows from the Constitution's Bill of Rights, First Amendment, the so-called Establishment & Free Exercise Clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof ... .

Constitution, Amend. 1.

Today, we use these clauses to shield the government from religious incursion. For instance, they have been used to argue — sometimes successfully, sometimes not — against (click for resources on each topic):

• Public Prayer.
• Creationism and its flavors .
• Public display of the Ten Commandments.
• Crosses on public land.
• "In God we Trust" lawsuit.
• "Under God," Pledge of Allegiance lawsuit.

However, these clauses developed as a personal right — hence their position amongst the rights enumerated in the Bill of Rights — to protect religion instead. For instance, the antifederalists argued, during debate over what would become the Free Exercise clause:

[A North Carolina delegate] "advocate[d] for... [the right] of worshipping [sic] God according to the dictates of conscience in particular. He therefore thought that no one particular religion should be established. 

[A New York antifederalist] criticized the Constitution, stating, "I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment... ." 

Advocates of amendments in Maryland urged "[t]hat there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty. 

... the Virginia ratifying convention included among its proposed amendments a statement "[t]hat religion ... can be directed only by reason and conviction, not by force or violence; and therefore ... no particular religious sect or society ought to be favored or established, by law, in preference to others."

Natelson, William and Mary Bill of Rights Journal, The Original Meaning of the Establishment Clause (2005) at 89 (formatting added).

An excellent observation on the religious views of the time come out in Natelson's discussion that the Establishment Clause was originally designed to protect only theists, and not to protect atheists:

... the contemporaneous "middle" was quite a bit more religious than it is today. One is reminded of the observation by that proto-Whig whose legal commentaries educated so many offounding generation's lawyers, Sir Edward Coke: "[I]n religion ... if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And take away reverence, you shall never have obedience ... . "

Natelson at 114.

Indeed, many of the constitutional delegates were actively hostile to atheism generally. "Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist." Id. at 101 quoting John Locke.

The point here is that the wall between church and government was not constructed to keep the church out of our lives, but to allow individuals believers to choose their own religion. Yet, the language is so clear: the state is a secular organization which cannot establish a religion and cannot interfere with its free exercise.

And the logical extension has been that favoring one religion over another amounts to an establishment of religion. This test has become embodied in a key constitutional decision on this matter in Lemon v. Kurtzman:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause.

Lemon v. Kurtzman, 430 U.S. 602, 613 (1971).

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion[; third], the statute must not foster "an excessive government entanglement with religion."

Id. (citations and formatting omitted).

Other, related tests exist, but this one is still widely used. What its saying is that government action must be secular in nature, cannot impinge religious belief one way or the other, and cannot encumber the operation of the government with religion.

Thus, current constitutional thinking does create a wall of separation between church and state. When it comes to laws, there can be no entanglement. This wall should be favored by theists and atheists alike. It keeps theists safe from the tyranny of a state religion and likewise keeps religion far from atheists.

If anyone tells you that the United States is a Christian nation, you can tell them that they are wrong. Their own religious forefathers made sure of that.

Your,
Bear

Change your Approach

Clients hire attorneys for all sorts of reasons: to defend them in criminal prosecutions, to enforce contracts, to uphold rights defined by statute, and to get money for injuries to their person or property. But in all cases one thing is the same: the client is seeking to offload their grievance to the attorney. Usually, the client wants to put the case in a black box and have a positive outcome on the other side. And attorneys, for one reason (to bill) or another (to keep the client pacified) are happy to oblige this way of seeing the relationship.

Image Source: Assembly Archive.

But two recent podcasts got me thinking that this might not be the best way of looking at the relationship.

The first was the Center for Inquiry's interview with Steven Novella, physician and podcaster for the New England Skeptical Society. In the interview, Novella describes his evolving approach to evangelizing and popularizing science and critical thinking. He describes early attempts at challenging popular superstitions — such as shattering mirrors to prove that nothing bad will happen — morphing over time into putting on a reasonable face, minimizing controversy, when confronting charlatans, even though they are selling snake oil. His point, I think, was that not all approaches work with all audiences. Thus, to get your message across, you have to be both savvy enough to know you're not succeeding and flexible enough to change your approach.

The same is true in evaluating how to pursue your case against your adversary in litigation. The art of litigation is getting someone to do something they won't otherwise do. What litigants forget is that doing so is time-consuming and expensive. But, depending on the circumstances, there must be a better way which minimizes the costs in time and money. The only way to do so is for the client and the attorney to work together — and for both you and your adversary to realize that only compromise can hope to minimize expense.

The second was a Freakonomics podcast about the economics of spite. This episode asked the question: why do we do things to hurt others — even when they hurt ourselves — from which we obtain no particular benefit? Now, I don't think they got the definition right — they appeared to emphasize the doing harm to yourself part, where as the dictionary (and my) definition is simply "malicious ill will" or simply "doing harm to others." Spite carries the connotation that the intent is the harm and not some other gain.

What got me thinking, though, was a set of experiments they described. Two individuals, paired off, who could not see each other were given $10. In the first experiment, one of the pair was required to offer the other a portion of the $10 so that the pair could walk away with some money. The other could either accept what was offered or could reject it and cause both parties to walk away with nothing. The researchers found that if the offer was less than 20% of the total, the other would consistently reject it, even though it meant that he (and the offeror) walked away with nothing.

In the second experiment, both parties were given $10. One of the pair could choose to allow both parties to walk away with the full $10 each, or could give up $1 to cause the other to lose $5. The researchers found that subject consistently sought not the greatest gain for themselves, but to maximize their own gain over that of the other — meaning that the often chose to shaft the other player, giving up the $1 so that they would earn a higher percentage.

In both cases, the players were harming themselves for the sole purpose of "spiting" the other player. And that so describes the approach many litigants hold in their lawsuit on both sides of the table. Does this say anything about human nature that can be used in litigation? Maybe, but does give rise to an idea which is uncommon in litigation: where can I place my number so that the other side thinks he's prevailing, while still getting me what I need?

Now, usually, negotiation tactics are all about convincing the other side that they are going to lose big time. But these experiments indicate that approach may be fruitless if the other side is willing to punish at any cost to him, her, or itself. Thus, neither party wants to give an inch, even if it saves them a yard.

And attorneys — wittingly or unwittingly — lead their clients into this money-trap. By offloading 100% of the problem and by doing the client's bidding, attorneys are often a barrier to a mutually beneficial settlement early in the case, rather than being a promoter of settlement when costs are low and the pressures of litigation haven't killed both sides.

A different approach is in order in most cases. Attorneys should be savvy enough in their unique fields to guide the parties to eliminate side issues or non-issues, and to either come up with a number which satisfies everyone's needs (before attorney fees eat away at that total) or to focus the litigation on what is really at stake — skipping the mud-slinging phase and getting the job done in a minimum amount of time.

Be Careful What you Say

...some future archaeologist might be listening.

Tablet of Shamash.
Image source: British Museum.

Because my job involves using language to communicate, I've started studying the history and use of English as a form of communication. It turns out that English is one of many Indo-European languages stemming from the same ancient root language. This language spread as groups migrated from the region the the north and east of the Black Sea (part of modern day Ukraine, Russian, and Georgia) in multiple directions. These migrations occurred approximately 6,000 years ago for various reasons — the nature of the geography, the rise of animal husbandry, and patterns of conquest.

And as various groups made their way out of the region, they took words from the proto-language and morphed them over time in various ways. The archaeology of those changes are predictable and their effects demonstrate commonality in languages as diverse as Greek, Latin, early Germanic languages, and into all modern European languages. (See chart, below.) Indeed, the same language family produced such far-flung languages as Sanskrit and Hindi.

What is fascinating is that in comparing all these languages, we learn that English is a great language sponge. It absorbs words rather than rejecting them. As a result, English has an enormous vocabulary with words coming from early Germanic, Anglo-Saxon, Latin, and Greek, just to name a few.

English is also very ready to accommodate foreign words, and as it has become an international language, it has absorbed vocabulary from a large number of other sources. —Oxford Dictionaries on whether English has the largest vocabulary.

The evidence for this exists in our day-to-day speech. For instance, you move your foot when you walk making you a pedestrian.

Image from Prof. Wheeler's page on the history of English.

Foot and ped- are "cognates," meaning: "Having the same linguistic derivation as another; from the same original word or root." Other surprising cognates include: cent- and hundred, and ward and guard. English is full of words which derive from the same original proto-Indo-European language, but came from different sources. Its these cognates which allow linguists to delve into the history and origins of our language.

Recently, scientists have uncovered root words (23 of them) which span an even larger set of language groups all over Europe, Asia, India, Africa, and into Alaska and go back as far as 15,000 years:

A research team led by Mark Pagel at the University of Reading in England has identified 23 “ultraconserved words” that have remained largely unchanged for 15,000 years. Words that sound and mean the same thing in different languages are called “cognates”. These are five words that have cognates in at least four of the seven Eurasiatic language families [including Altaic, Chukchi-Kamchatkan, Dravidian, Inuit-Yupik, Indo-European, Kartvelian, and Uralic]. —Washington Post, by Wilson Andrews and David Brown

An impressive finding that demonstrates just how interconnected the human species is and why we're able to communicate at all.

English is a wonderful, flexible, and utilitarian language with a fascinating history. For an accessible and enjoyable account of that history listen to the History of English Podcast.

Your, Bear