Leonard W. Levy (1923–2006)

Conservatives,· those great architects of negative advertising, enormous deficits, and a bankrupt foreign policy, have also created another profoundly absurd issue: that of Original Intent. "We need to return to the Constitution of the Founding Fathers," they cry, "down with judicial activism," (totally ignoring the 40 some years when a very conservative Supreme Court at the turn of the century moved in a very activist manner.)

Leonard Levy, a leading constitutional historian, has mercilessly exposed the Meeseian folly of a "Jurisprudence of original intention." The irony of all this is that the framers understood their own limitations. They used spacious words and phrases that left room for adaptation to change. And they took very specific care not to create a legislative history of their own thinking that would confine the Constitutional text to the literalism of what they expected in 1787. No stenographic record was made of the debates; the participants notes are sketchy, many left none at all; and almost 30% of the participants did not even sign the document.

As in any compromise, the delegates saw different meanings in the words on which they finally agreed. Levy shows, however, that even the most executive minded of the delegates, Alexander Hamilton, viewed the Presidency as the agent of the Congress, that matters such as foreign policy and war and peace were the prerogative of Congress. They were deathly afraid of a vigorous president, having had plenty of experience with strong monarchs. What a delicious irony.

Those who would have us return to the framers' intent insist on a strong presidency with the right to trample over Grenada and Nicaragua at will display "either their ignorance or their hypocrisy.( Of course, liberals, when their President holds office are just as bad, witness Arthur Schlesinger Jr.'s great flip-flop )

In the end there is no escape from the text of the Constitution, or from the judges' obligation to interpret it. "Just what our forefathers did envision," Justice Robert H. Jackson said, "or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." Thus the equal protection clause, despite what Robert Bork would have us believe, applies to all persons, including women, blacks, and undesirables. We need to return to the text, not to what some would have us believe was behind the text.

Excellent book. Required reading for anyone who follows the Supreme Court.… (plus d'informations)

This is a substantial and extremely interesting history of the way people have defined and punished imprecations. Now of course it's important to remember that blasphemy is a victimless crime, yet one that has been most severely dealt with in the past.

Simultaneously it's a history of freedom of expression and how the liberty to speak without fear of reprisal has grown in scope. The definition of what is blasphemous has changed often revealing what society will and will not tolerate, the limits society feels it must enforce in order to preserve its unity.

The irony is that historically most blasphemers have not been irreverent ridiculers of religion. Atheists and anti-religionists were not the victim of blasphemy laws until the nineteenth century. It has always been fervent religious believers, devout Christians who suffered the figurative and physical arrows of legal oppression. It is those who refuse to accept the standard religious interpretation of the majority faith that religious zealots wish to oppress. Christianity took a very narrowly defined Jewish definition of blasphemy and broadened it until the distinction between heresy and blasphemy disappeared. The early Protestants considered Roman Catholics to be blasphemers; heresy, with its more sever penalties they reserved for dissidents within their own ranks. So it's important to remember that when the Supreme Court rules in favor of artists who presume to use the crucifix in a different or unappealing way, that they are protecting the essence of religious expression and freedom.

This is not to suggest that blasphemous remarks are not painfully offensive to the religious, and that has been the traditional reason for blasphemy laws. “But offensiveness is an insufficient basis for sustaining blasphemy laws. It has no basis for special protection. As the Supreme Court ruled in a case involving racial epithets, “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it produces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Strictly speaking, blasphemy means speaking ill of the sacred. It is not unique to monotheistic religions, but, of course, requires some concept of sacred. Every religious society wishes to punish those who denigrate their concept of what is sacred because it affronts the priestly class, which is usually in a position of power. Ironically, I suppose, a basic underlying assumption is a fear that the God(s) will reveal themselves to be impotent when the offenders are not struck down. Natural disasters (you know, like global warming) are often ascribed to vengeful Gods who wish to punish societies that do not engage in an adequate level of obsequiousness and servility. If blasphemers are not punished, orthodox truths can be called into question perhaps the best reason for NOT punishing them.
Heresy became formalized in the fourth century — see When Jesus Became God, reviewed in Issue 90 for a full discussion of the issues related to defining the Trinity and the Arian heresy.

. Without orthodoxy, heresy cannot exist. The merger of church and state begun under Constantine meant that the power of the secular could now be used by the church to enforce orthodox views. Books could be burned, heretics banished, and non-believers — more accurately, wrong-believers — anathematized. By 435 there were sixty-six laws (on their way to becoming six-hundred-sixty-six, no doubt) aimed at church heretics. Der so genannte Saint Augustine, began a campaign against the Donatists arguing that it was “a good work to correct evil men by evil”. Toleration of toleration was evil and no mercy to the heretic because it intensified his damnation. “It has been a blessing to many to be driven first by fear of bodily pain, in order afterwards to be instructed,” he wrote, laying the groundwork for the Inquisition. The Corpus Juris Civilis of 529 in the east condemned heretics and blasphemers to death.
Blasphemy became quite catholic in its application under Luther. He was reluctant to declare any group who believed differently than he to be heretical because the the Catholic Church had denounced him as a heretic, but as he aged and became more dogmatic and less tolerant, his attacks on Jews, Anabaptists, Unitarians, and others became vicious, even declaring they should be executed as blasphemers. Any denial of Christian faith as he understood it was to be considered blasphemous. Soon he was applying the term so promiscuously as to make it virtually meaningless.

The concept of the Trinity continued to be a stumbling block for many. Arianism resurfaced and Michael Servetus (1511-53) became its first martyr in Calvin’s Geneva. He had attempted to systematize the anti-Trinitarian position, declaiming “not one word is found in the whole Bible about the Trinity, nor about its Persons, nor about an Essence, nor about a unity of the Substance, nor about one Nature of the several beings.” Servetus tried to reeducate the theologians of the Reformation. Forced into hiding he assumed a new identity as a Catholic even while working on a new book that would “restore” the innocence and simplicity of the Bible. Temporal power and an erroneous Nicean Creed, he argued, had corrupted the Church. He wanted to rediscover the true Christianity. Unfortunately, he made the mistake of trusting John Calvin, writing him about some of his ideas. Calvin betrayed him to the Inquisition. He escaped, was caught by some Clavinists, was tried and burned at the stake with a copy of his book.

Finally, someone had enough of the bloodletting. Sebastian Castellio of Basel published a book supporting religious liberty. He used three different pseudonyms, necessary because just the idea of toleration could bring the charge of heresy or blasphemy. He stated that heresy had become misdefined as any position with which one disagreed. He argued that only conduct should be punished, never belief, a position that was redefined by Thomas Jefferson two centuries later.

Wycliffe and the Lollards in England resurrected the conflict between secular and religious authority. The inquisition against Wycliffe’s Protestant-like beliefs led to the death of many of his adherents. The church, fearing to hang out there all on its own, persisted in seeking the legal approval for these burnings from the state. Indeed, Henry IV's ascension to the throne would have been impossible without the help of the archbishop. He agreed to help persecute the Lollards. In 1401, William Sawtre, a parish priest -- he had denied transubstantiation -- was grilled, partly to display to Parliament that Henry and the church could do what they wanted in this regard without its permission. Parliament lost no time in approving their actions, and passed the De Heretico Comburendo. This act failed to define heresy giving the church a blank check to inflict its definition anyway it wanted. Henry VIII severed ties with Rome in 1534, but the new closer link between church and state did not result in lesser punishments for heresy. Now treason against the state could also be defined as heresy resulting in being burned at the state rather than just beheaded. Mary’s ascension in 1553 restored Catholicism and its insistence on orthodoxy resulted in an orgy of burning. Between 1555 and 1558, 273 people were killed for holding beliefs that contradicted those of the Catholic Church.

Elizabeth’s reign was much milder. She really cared little for the religious peccadilloes of her subjects, and tolerated a great deal of religious diversity as long as it did not threaten her reign, but in 1648 Parliament passed “An Ordinance for the Punishing of Blasphemies and Heresies” that attempted to restrict Socinian (a form of Arianism that insisted reason must be one avenue to understanding the Scriptures) adherents, most notably John Biddle and Paul Best. The Ordinance specified quite precisely what must be believed in order not to be considered heretical. The Baptists, perhaps somewhat ironically, were the chief opponents to the Ordinance. Taking a remarkably liberal stance, they believed that erroneous opinions were inevitable, that God permitted them, but that Truth would prevail over time. They claimed that “persecutors always saw truth as blasphemous, thus justifying their coercion of conscience. Christ had not planted his church by force. To exact an unwilling and hollow conformity was the real blasphemy. Any limitations on religious belief or any punishment for it destroyed the foundations of liberty, opening the way for further persecution.” I could not have said it better myself. They foresightedly also realized they were next in line after the Socinians. As are we all.

… (plus d'informations)