Welcome to the Liberty insider.
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This is a program bringing you
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news, views, discussion,
and up-to-date information
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on religious liberty in
the US and around the world.
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My name is Lincoln Steed,
editor of Liberty magazine,
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and my guest on this program
is Attorney Sonia DeWitt.
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Welcome Sonia.
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You're an attorney as I said,
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you're specializing in
antidiscrimination cases.
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Yes.
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And I think your
main claim to fame
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from my perspective
lately is you've written several
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or a couple of
very good articles
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for Liberty
magazine with more to come.
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And this is the punishment
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for getting
involved with Liberty
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that you could
be on this program.
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But I really want to talk to you
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about a number of topics,
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but on this program,
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let's talk about
the Supreme Court.
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There are many
ways you can come at it.
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But the late Antonin Scalia,
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who was a real personality,
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I think even people
that didn't follow the court
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knew about Scalia.
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He was an originalist,
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original intent also he claimed,
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he followed it literally.
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And may be some
problems with that,
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some fallacies
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that you can
set yourself up for.
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What do you think about that?
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Is it a valid way to
interpret the Constitution?
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Well, it's an interesting point
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because there are so many things
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that have changed
with the Constitution.
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Particularly, the 14th
Amendment is a big one.
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But I think, in my opinion,
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the whole philosophy
has some serious problems.
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First of all,
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well, there are
logistical problems in the sense
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that nobody really knows
what the original intent was,
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because every person involved
in drafting the Constitution
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and then the people who
ratified the Constitution
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had different opinions.
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So how you can find a quote
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that will prove almost
any viewpoint that you have,
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because people had
different viewpoints.
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So that's one of the problems.
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But the other problem
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that I think is
more philosophical
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is that the
founders of the country
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were making compromises
as we do politically today.
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They were not
following their vision.
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But you're not saying
that the Constitution itself
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has it come from as well?
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Ah, well, it depends
on how you define that.
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Yeah, that's what I
mean. I want you to define.
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Well, I mean, clearly,
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practically
speaking, that's true.
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But that's not gonna
give people security in the...
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Well, it's...
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In the baseline law of the land
if it's a compromise document.
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Yeah, first of all say
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it was clearly a
compromise document.
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You know, for many
people even on Christians,
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this is pretty much
secular amount to signing up.
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Yes.
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And that's another
of the problems that...
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But I will say that I think
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that the Constitution
was an incredible document.
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I mean, particularly
for its time period,
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it was completely revolutionary.
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There had been nothing like
it in the history of the world
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that I'm aware of.
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What makes it...
What's revolutionary about it?
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Well, many things.
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There's the emphasis,
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they totally ended
the power structure.
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The traditional power structure
that the divine right of kings,
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the top down power structure...
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Now, there's people that are...
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They up ended it
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and put the power at
the bottom with the people,
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which is a
completely revolutionary concept
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that had never
really been implemented
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in government before.
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And the other obvious innovation
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was separation
of church and state,
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which had never really
existed in a government before.
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The idea that the state
and the church were separate,
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they were not supposed
to meddle with each other.
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Even many people in the country,
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in the US at the
time were concerned
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about how you
can have a government
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without the
church being involved.
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So the idea that
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the church and
state would be separate
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was a really
revolutionary concept.
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As you're saying that
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what strikes me is the
part of the revolutionary
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or the change model was
pretty much before that.
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Countries were
either a people group,
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which easily came
with a certain religion,
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or an empire where
people were coupled together
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under this superpower.
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But here, for the first time
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people have been cut
loose from all the old models
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coming into the new world.
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They didn't have a king
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or at least the
throne of the king.
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They were so many
different religious viewpoints,
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there was no common one.
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So they were almost forced
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to reach out in
the direction they did.
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So yes, I think in many ways,
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the Constitution was
a remarkable document.
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I think that the people
who've founded this country
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were geniuses of
a very high level
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but having said that,
they were not deities.
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They were not imperfect
and they very well knew it.
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They knew that what they
were doing was a compromise.
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Particularly,
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the biggest example
is the issue of slavery.
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Many of the...
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Even the slave owners
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among the founders
knew that slavery was wrong.
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They knew it's going
to cause huge problems.
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In fact, there's a
quote from Jefferson saying,
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you know, "I
tremble, because God is just
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and He's not going to basically
allow that to continue."
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He knew it was wrong.
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And many of the
founders knew it was wrong.
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But it was so integral
to their financial system
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that they didn't really
know what to do about it.
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So they punted
it down on the road.
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Well, it was
Jefferson complicated the issue
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with Sally Hemings a little bit.
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Well, that's another
story. And her sister's husband.
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That's another issue altogether.
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But yes, that was
not uncommon at the time.
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And my personal opinion is that
they loved each other that...
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Oh, yeah. I mean...
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But... I'm making
light of it but...
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But that's a separate issue.
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And also the issue of the fact
that Jefferson later went on to
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espouse slavery
more and more closely,
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as he began to
realize how profitable it was.
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But that's another issue.
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But, you're right,
what you're getting at is,
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I think, for different reasons
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some of the
founders and the framers
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had sort of suspended
some of their personal views
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with the need for a common unity
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and a single
structure work for anyone.
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Right.
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Well, and they also
suspended their ideals
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for a real world compromise
that could actually get past.
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Remember when the
Constitution was adopted,
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when they went to the
Constitutional Convention,
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nobody was intending
to create a Constitution.
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They were intending to revise
the Articles of Incorporation.
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And that was a
very different thing.
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Because the Articles
of Incorporation had,
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the states had all the
power, and they were just...
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It was kind of like the UN,
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there was no real central power.
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So when they
created the Constitution,
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they had to think about
how it was gonna be ratified,
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because the states really
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didn't intend
this to happen at all.
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They saw themselves
as sovereign entities,
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didn't they?
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So you're getting into something
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that interests me.
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What do you think
convinced sovereign states
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to give away an
element of their sovereignty?
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Well, I think it
was practicality.
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I mean, their
financial system was a mess,
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they had different currencies,
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they couldn't really
trade with each other,
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there was kinds of issues
and then there was the issue
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of how do we defend ourselves.
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Because even
during the revolution,
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getting people to join
the army was a real trick
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and then paying them
after they joined the army.
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So there were a lot
of practical reasons
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why they needed a
central government.
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They were just afraid of it
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because of their
experience with England.
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So my view is that
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they did make a
lot of compromises,
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moral and otherwise.
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And they knew they did.
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And I think that
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to look at the...
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As the originalist,
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particularly on
the Supreme Court do
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to look at the
founders as secular deities,
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who were all
knowing and all wise.
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And we have to study their words
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like they're the Holy Bible,
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and it's kind of
a strange viewpoint.
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Yeah, and you wouldn't
know that from Washington
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because the statues
of Lincoln and Jefferson
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loom pretty big.
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Well, they were great men.
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You know, they and...
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There's no question
that they were great men,
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they were also flawed men.
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And they knew that
they had made compromises
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that they didn't
think were ideal.
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But I think that
they were hoping that we,
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their posterity
would remedy the flaws
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that we would have
more courage than they had.
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And that's what in
discussion before this,
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I was mentioning a
comment by Jefferson,
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where he sort of prevue
the idea of an inflexible
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unchanging Constitution.
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And he said
something to the effect
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that you might as
well wear the same clothes
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as when you're a child
as when you're an adult.
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And I think he mentions
in our days of primitivism
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that we should
move with the times.
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Now, you know,
that's sort of dangerous
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because while there are people
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that buy into the
living Constitution idea.
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I think it's patently obvious
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that if you see the Constitution
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as a starting
point, then where are you?
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You're not
really on any guideline,
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you're just doing what you want.
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And that's what the
originalists are reacting to,
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I think the idea that...
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Let's make it up
as you go long term.
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Right, right.
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And just to back up a minute,
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I wanted to say what Jefferson
said to Adams when they...
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During the Constitutional
Convention, he wasn't there.
00:10:46.88\00:10:49.58
He was the ambassador
to France at the time,
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but he was writing to Adams
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to keep an eye on
what was going on.
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And one of his
brilliant ideas was
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that we should
have a new Constitution
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every 20 years,
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because every generation
should be able to create
00:11:00.69\00:11:02.49
its own Constitution,
00:11:02.52\00:11:03.89
which as you can imagine,
00:11:03.93\00:11:05.69
Adams was just like,
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what are you talking about?
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But that gives you an idea
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of what Jefferson
thought about originalism?
00:11:12.37\00:11:14.94
So let me tell you what I
think on the Constitution,
00:11:14.97\00:11:17.84
I think the...
00:11:17.87\00:11:19.27
Not so much unique,
00:11:19.31\00:11:20.64
but the powerful
part of the Constitution
00:11:20.68\00:11:24.78
is it's so aspirational.
00:11:24.81\00:11:26.82
Not all of it, in fact,
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in many ways the better
parts of the amendments, right,
00:11:28.22\00:11:31.55
the Bill of Rights?
00:11:31.59\00:11:32.92
Right.
00:11:32.95\00:11:34.29
But it did sort of
strike in a direction
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that most governments
were not even thinking of.
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And it opened up
great possibilities
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for future development.
00:11:45.70\00:11:47.04
And religious liberty is
the one we're interested in.
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And I take that as an
aspirational statement
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that here is a government
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that's gonna allow you
to worship any way you want
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or not to worship and
won't be in the business.
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It's imperfectly
applied at different times
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but it's a wonderful ideal.
00:12:01.22\00:12:02.98
Well, it is.
00:12:03.02\00:12:04.35
And I think we're gonna be
talking about that more later.
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But what was standing in the way
00:12:07.02\00:12:10.59
at the time with the states,
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and they weren't going to meddle
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what the states were doing,
00:12:14.00\00:12:15.36
because as some of the
states had established churches,
00:12:15.40\00:12:18.10
and at that time there's...
00:12:18.13\00:12:19.47
Maybe we can talk a
little bit more about that.
00:12:19.50\00:12:20.94
Yeah.
00:12:20.97\00:12:22.30
You know, I do believe in
separation of church and state.
00:12:22.34\00:12:24.64
I think it's a
proven model for the US.
00:12:24.67\00:12:28.58
And we argue that Liberty
magazine and separationist,
00:12:28.61\00:12:33.11
but there is a
fly in the ointment,
00:12:33.15\00:12:34.92
the establishment
situations in different states.
00:12:34.95\00:12:39.05
I think on one level,
00:12:39.09\00:12:41.36
what passed on the
federal level was done
00:12:41.39\00:12:44.23
with a tacit agreement
00:12:44.26\00:12:45.86
that the states
would still be allowed
00:12:45.89\00:12:47.23
to do what they
want on establishment.
00:12:47.26\00:12:50.23
Well, yes, technically.
00:12:50.27\00:12:53.90
But yeah,
00:12:53.94\00:12:56.60
we'll get into more of
the technical aspects likely.
00:12:56.64\00:12:59.87
You don't know
when we gonna get into,
00:12:59.91\00:13:02.21
I can stare you.
00:13:02.24\00:13:04.38
But if you like to,
00:13:04.41\00:13:05.75
we can discuss that
a little bit further.
00:13:05.78\00:13:07.12
Why don't we take
the break right now,
00:13:07.15\00:13:08.82
and we'll come back and continue
00:13:08.85\00:13:10.42
this dynamic
discussion of the Constitution
00:13:10.45\00:13:13.86
from an
originalist point of view.
00:13:13.89\00:13:15.29