The American Protestant Empire and "The Incorporation", 1940-1947

In my first two posts on Michael DeHaven Newsom's article "The American Protestant Empire: A Historical Perspective" I reviewed his interpretation of the Long English Reformation from Henry VIII to William and Mary and his views of the Protestant Empire established in the British American colonies and the Founders' vision of the United States of America. Newsom concludes that the Founders intended to protect Protestant hegemony in the new USA not at the federal level (thus including a provision for no religious tests for federal office and the non-establishment clause in the First Amendment) but at the state level, through established Protestant churches, institutions, and the destruction of the religious system of African slaves in the USA (and of Native American religious beliefs too). He concludes that section on establishment of the American Protestant Empire with the note that Protestants hoped that through the system of suasion and coercion at the state and local level dissenters--especially Catholics--would eventually become "orthodox" Protestants (evangelical fundamentalists). That was certainly one of the ancillary benefits National Prohibition reformers hoped for: Catholics would sober up and become good evangelical fundamentalist Protestants!

All that remains to discuss is Newsom's section "C. The Incorporation". I admit I struggled with this section because I cannot determine where he defines or finds the term The Incorporation, which he dates to 1940-1947. It's not a period I've ever seen mentioned in surveys of American history. I presume he coined the term himself or perhaps he is referring to the incorporation of the Bill of Rights and other Amendments into state laws by the passage of the Fourteenth Amendment in the nineteenth century, because he does not cite a specific source for The Incorporation of 1940-1947 that I can see--or why he dates it to 1940-1947. He describes the Incorporation as "an adjustment of the rules of the Protestant Empire, largely inspired by the conclusion that the Protestant majority had proceeded in an excessively ham-handed way with respect to religious minorities." Catholics were still the main group the American Protestant Empire wanted to persuade or coerce--the same Elizabethan/Stuart fear of Catholics as alien and dangerous was in place, "embedded in American culture." (p. 256)

He sets the scene for this Incorporation by explaining how the result of "the Scopes Monkey Trial" (The State of Tennessee vs. John Thomas Scopes) in 1925 and the failure of National Prohibition in 1933 left only the Protestant control of religious teachings and Bible reading (The King James Bible) in the common (public) schools as the main source of suasion and coercion in the American Protestant Empire. In general, he notes, State Courts upheld this religious control--and of course states had legislated this control through the Blaine Amendments.

Newsom sees an English historical parallel for the inspiration of this Incorporation in the Restoration reaction to the Puritans as the Anglicans in 1660 recognized that the "zealous push to Protestantize in a radical Puritan direction can go too far" (p. 259). Therefore, the Incorporation was a Protestant effort to maintain the American Protestant Empire by non-evangelical fundamentalist Protestants in the USA comparable to the Stuart religious settlement at the Restoration because evangelical fundamentalist Protestantism had caused "serious trouble" (p. 269) in the USA as Puritans had in the Interregnum England. So through the Incorporation--whose "idea" Newsom notes "may go back to the time [1868] of the adoption of the Fourteenth Amendment" (p. 261), the Tentative Principle was revised.

The previous Tentative Principle was:

allocate much of the work of the Anglo-American Reformation to the states and other institutions and not the federal government (pp. 250 and 251).

In 1833, Massachusetts became the last state to end support of its established church, the Congregationalists: thus the first part of that Tentative Principle had fallen away long before 1940-1947, the Scopes trial, or the experiment of Prohibition.

The Revised Tentative Principle was/is:

allocate much of the work of the Anglo-American Reformation to the states and other institutions and not the federal government, but allocate none of the work of the work of the Anglo-American Reformation to the officials, administrators or teachers in the common schools (p. 263)

Again, I could not find a citation for some pan-Protestant document or agreement among mainline Protestants that set forth this new agreement: it must be his interpretation of what happened, as U.S. Supreme Court and State Court decisions removed all religious (Protestant) expression from the common/public schools:

• eliminate prayer in common schools
• eliminate religious instruction in common schools
• eliminate the posting of the Ten Commandments in common schools
• eliminate the teaching of creationism in common schools (or the "balanced treatment" of both evolution and creationism in common schools

and Newsom fills almost a page with footnotes describing the cases that led to this secularization of the common schools (p. 262)--but most of them were decided after 1940-1947(?).

Newsom doesn't deal with it much, but I presume that the onus of upholding the American Protestant Empire in the common schools is thus left to the students (and their parents), who demand the freedom to pray, to read the Holy Bible when out of the classroom but still in the school, to cite the Ten Commandments or other religious, biblical, moral, doctrinal or liturgical beliefs in their homework assignments, presentations, etc. Thus the battle over valedictorian speeches at graduation ceremonies with any mention of God or faith: what freedom of religion does the student have at an official event?

In 2001, Newsom--in his Conclusion--asserted not only that the American Protestant Empire was a "historical reality" but also that it is "a present reality in a way that would warm the hearts of Henry and Elizabeth." (pp. 263-264) He cites Catholics losing their faith in the Real Presence of Jesus in the Eucharist as a key to the kind of assimilation Lyman Beecher hoped for in the nineteenth century--without that belief Newsom doesn't see much difference between Catholics and evangelical Protestants. According to more recent Pew polls, that failure of belief may have only gotten worse. Newsom comments in a footnote (611) that there is a tendency to view Catholicism in America as just another pan-Protestant denomination engaged in the "culture wars". 

He also notes that "The continuing problem of race in America, particularly as it relates to African-Americans, a problem invented by Anglo-Protestants, is far from being solved." (p. 264) He absolved the Catholic Church from racial problems in footnote 68 on p. 197, with the statement that "Slavery in the Roman Catholic New World was far less harsh than in the British and American New World"--an absolution I don't think that many Catholic historians would accept absolutely. Certainly we could argue that the Catholic Church taught against chattel slavery, argued for the good, fair treatment of indentured servants, outright condemned all forms of slavery, etc., during our long. long history, but instances like the Jesuits at Georgetown University owning--and selling--slaves in the nineteenth century make any Catholic virtue signalling on African-American chattel slavery uncomfortable.

Current common opinion seems to be that the United States is an officially secular country insofar as our government and administration of laws attest, but that many United States citizens live according to religious moral and doctrinal teachings, wanting to worship freely, live according to our faith, and hand on our religious beliefs through catechesis. Thus we rely upon the government and administration of laws to protect those freedoms. Thus the continuing existence of parochial and private schools, Catholic and Protestant, Jewish and Muslim, etc. 

Newsom is not content with that common opinion, not because he sees the virtues of an American Protestant Empire, but the dangers of an American Protestant Empire. As he stated in note 3, page 188:

It is my ultimate judgment that the American Protestant Empire has largely been an unmitigated disaster for people who are not both white and Protestant, particularly, but not exclusively, Native Americans and African-Americans. I also believe that it has posed enormous difficulties for whites who are not Protestants, mainly Catholics, Jews and Eastern Orthodox, the so-called "white ethnics". . . .

The American Protestant Empire needs to end, but it will not unless and until people who have been harmed by it take conscious and deliberate steps to end it. . . .

I wonder if anyone has taken up his challenge, that if they really want to claim that the USA is a post-Protestant country, they have "a great deal of explaining to do"[!] He thinks that with 500 plus years of history, and of constraint and coercion, the American Protestant Empire is "a culturally embedded reality" (p. 266)

As you can reasonably conclude from the fact that I dedicated three posts to a seventy-nine page article in a law journal, Professor Newsom's argument, historical and legal, fascinated me. The main difficulty I had was the lack of documentation for either the first Tentative Principle of the Founders' religious arrangements in The Constitution of the United States of America or the Revised Tentative Principle of The Incorporation of 1940-1947. Since his argument is based on "historical inquiry" (p. 245), shouldn't he present some documentation for these Tentative Principles? I did not find that documentation clearly presented in his notes--they seem to be inventions of his interpretation of nineteenth and twentieth century American history. 

The Stuart Dynasty, Toleration, and the American Protestant Empire

Last week I posted some comments on Michael DeHaven Newsom's article in the Washburn Law Journal, "The American Protestant Empire: A Historical Perspective", particularly his interpretations of the Tudor religious settlements during the reigns of Henry VIII, Edward VI, Mary I, and Elizabeth II. Herewith some comments on his views of the Stuart era, including the English Civil, the Interregnum, Restoration, and the Glorious Revolution.

Newsom discusses the varieties of religious belief during the seventeenth century, ranging from Laud's High Church Anglicanism (Arminian Church of England), to Presbyterianism (Calvinist Church of England), to Separatist/Independent Calvinist,  noting that through the century the Presbyterians lost the most ground, while High Church Anglicanism held on weakly until its nineteenth century Tractarian revival. He doesn't highlight low or broad church Anglicanism, but those forms of the Church of England also survived, while Separatist/Independent Calvinism was the more dominant view of English Protestantism, the one whose adherents brought to British America.

As he notes, the Stuart monarchs constantly fought the House of Commons on religious matters in domestic and foreign policy, and the Commons was the equal if not the master of the Stuart kings. He focuses on two Stuart era Religious Settlements: in 1662 after the Restoration and in 1688 after the Glorious Revolution. During the Interregnum comments that there was no established religion in England--it was neither Presbyterian nor Episcopalian.

Newsom does credit both Charles II and James II with giving "us a foretaste of a broad and liberal toleration" (p. 235) with their Declarations of Indulgence in 1672 and 1687--both of which were thwarted by Parliament opposition.

But it is Newsom's review and judgment of the 1689 Act of Toleration (and John Locke's empirical views of religious Toleration) that I found most interesting. He notes that William of Orange wanted to "restore [religious] unity without threatening the Anglican hegemony" (p. 235). Therefore, Dissenters received some freedom of religious practice and worship with Anglicans having the control of Parliament since Charles II's Corporation and Test Acts still dominated English Protestantism. Catholics, non-Trinitarian Protestants, and Atheists were not included in the Act of Toleration.

Newsom opines that the Act of Toleration fails on the three grounds he identifies as sources for the idea of religious tolerance: prudence (inadequate), rationality (irrational), and morality (too narrow), concluding that it is an obstacle and not an opportunity for the establishment of religious tolerance as a governing principle that may be acted upon in a community.

If the abiding rule is that the "tolerant must be intolerant of the intolerant" (p. 238), Newsom places the burden on the tolerant to prove that they've prudently, rationally, and morally identified the intolerant. Were Catholics, Unitarians, and Atheists intolerant? any more intolerant than Dissenters? than some Anglicans? Newsom thinks that William and Parliament could not prove they weren't and thus concludes that the Anglicans and Dissenters who designed the Act of Toleration "flunked the test." (p. 239)

Nevertheless he says that they institutionalized the ideas of "restraint and attrition" in government's view of religion. (Anglicans hoped that Dissenters would eventually become weaker while they remained in power.) And because the Act of Toleration maintained the Penal Laws and Test Act in the name of maintaining Anglican power but wouldn't exercise them against Dissenters who swear designated oaths, Newsom believes it "compels a discourse distinguishing toleration and rights". (p. 239) He concludes that the Act of Toleration fostered the pan-Protestant diversity present in English religion since the Tudor era and that it "confirms the moral strengths and weaknesses of the Anglo-American Reformation" (p. 240) without identifying either the strengths or the weaknesses!

I think it would be hard to demonstrate that England had any stronger moral code in 1689 (public or private) after the long Reformation period of Tudor and Stuart religious settlements than it did before 1533. Per Newsom's own comments, these religious settlements, establishing a pan-Protestant Empire in both England and the United States, have demonstrated great moral weakness in discrimination and oppression of those who didn't belong to their citizens' race or religion. Thus, I don't know what that sentence really contributes to our understanding of this result of the Anglo-American Reformation in the Act of Toleration--intolerant tolerance or tolerant intolerance?

So then Newsom leaves England for British America, defining the predominant, normative form of American Protestantism as revivalistic and evangelical with a pietist strain, demonstrating lack of respect for institutional mediation (the Church of England/Episcopal Church), and certainly Calvinistic.

Anti-Catholicism and the fear of individual Catholics was also part of the colonial belief system. As for social reform in the colonial era, Newsom points out that Chattel slavery was a pan-Protestant project and institution. He could have also noted, as Martin E. Marty does in the first chapter of his Righteous Empire: The Protestant Experience in America, the genocidal pan-Protestant attitude toward the Native Americans.

Citing Jon Butler's "Coercion, Miracle, Reason: Rethinking the American Religious Experience in the Revolutionary Age", Newsom outlines how the American Protestant Empire practiced "Suasion and Coercion", adapting English methods to the colonial setting: 1) the colonial religious establishments (colonial churches); 2) the establishment of colonial religious institutions (colleges, etc), exerting "coercive power" over their members; and 3) the "wholesale destruction of the African religious systems" brought by African slaves (which would also apply to the Native American religious systems). (pp. 244-245)

Examining the Founding of the United States of America via the Constitution, Newsom opines, "Neither originalist nor theoretical forms of inquiry can yield up a constitutional principle of religious freedom. However, historical inquiry can" and notes that the principle of religious freedom developed by the Founders is based upon "an ideology of anti-Roman Catholicism, pan-Protestant toleration, the destruction of African Religion and a 'persistent insensitivity' to Native American Religion."

Thus again "confirm[ing] the moral strengths and weaknesses of the Anglo-American Reformation"?

Newsom notes that the delegates to the Constitutional convention were predominantly Protestant, mostly Congregationalist and Anglicans, and predominantly Zwinglians, opposed to the doctrine of the Real Presence in the Eucharist.

Regarding the constitutional principle of religious freedom that was finally written into the U.S. Constitution, Newsom states: "The Constitution does not declare that America is a Protestant Empire. It imposes no religious test for national office, but the Founders did not overthrow the entire political and religious world in which they had grown up." The Constitution does not declare the newly founded country a Protestant Empire because of the Federalist model of governance the Founders established; colonial Protestant diversity; and "the opposition of some delegates to organized religions" (the Deists at the Convention).

Therefore, Newsom argues that the Founders established "The Tentative Principle" for the establishment of an American Protestant Empire:

allocate much of the work of the Anglo-American Reformation to the states and other institutions and not the federal government (p. 250 and 251).

I am not saying that I agree with everything that Newsom is saying; it is different view of religious freedom in the Founding and in the Constitution than I have read before, for example in The Right to be Wrong: Ending the Culture War over Religion in America by Kevin Seamus Hasson or The God of Liberty by Thomas S. Kidd.

And how fascinating that that this historical view of religious freedom was published in a law journal! I have not explored what kind of reaction Newsom received in the Washburn Law Journal or other publications.

After Holy Week, I'll conclude my notes from this article, as Newsom discusses Prohibition, Public Schools, and what he call "The Incorporation" of pan-Protestantism in the 1940's.

The English Reformation and the American Protestant Empire

I break my posting fast again to comment on some recent reading.

As followers of this blog may know, one of its themes is religious freedom and the lessons of the English Reformation reflected in the Constitution of the United States of America. Earlier this year--seems a very long time ago now--when researching the anniversary of Prohibition in 1920, I found an article by one Michael DeHaven Newsom (Howard University School of Law): "Some Kind of Religious Freedom: National Prohibition and the Volstead Act's exemption for the Religious Use of Wine" published in the Brooklyn Law Review, Volume 70, Issue 3, 2005.

Then I found Professor Newsom's previous article, "The American Protestant Empire: A Historical Perspective", published in the Washburn Law Journal (Washburn University is in Topeka, Kansas), Volume 40, Issue 2 (Winter, 2001), which I finished reading last week. (I purchased a copy of the journal since I could not access it on-line.)

And I've found another article online, "Common School Religion: Judicial Narratives in a Protestant Empire", published in the Southern California Interdisciplinary Law Journal (Volume 11, 2002), which I have not yet read.

In the two articles I've read, Newsom traces the history of the English Reformation in its religious settlements through the Tudor and Stuart dynasties and how they impacted religious practice and political systems in the British American colonies and in the Federal Constitution and the States' Constitutions of the United States of America. In the Washburn Law Journal article he provides a historiographical overview of the religious settlements of the English Reformation from legal, political, social, and judicial enforcement perspectives as the background to the American religious settlements from those same perspectives. In other two articles, he applies that background to specific events and laws, specifically, Prohibition of the production, distribution, and sale of alcoholic beverages and the public school or common school system in the United States of America, having previewed both causes in the Washburn article.

His thesis is that the establishment clause of the First Amendment was not really for the protection of religious liberty for all in the United States of America, but an effort to protect the British colonial Protestant Empire by allowing the states to establish official Protestant churches and thus protect Protestantism in the states, individually and united. In a footnote at the beginning of the Washburn Law Journal article, he offers his opinion that this Protestant Empire has been an unmitigated disaster for Native Americans and African Americans, and detrimental to ethnic whites (Jews, Catholics, Eastern Orthodox). He focuses on American anti-Catholicism in the latter part of that article, noting that fear of Catholics influenced Protestant support of Prohibition and the religious instruction in the Public/Common Schools.

In the Washburn Law Journal article I am particularly interested in Newsom's analysis of the religious settlements of 1534 (Henry VIII); 1549 (Edward VI); 1554 (Mary I); 1559 (Elizabeth I); 1662 (Charles II and Parliament); and 1688 (Parliament and William & Mary). Except for the religious settlement of Mary I which restored England's religious connections to the universal Catholic Church and the Papacy to some extent, these English religious settlements have certain things in common:

• Anti-Roman Catholicism (either against the Church or individual Catholics)
• Protestantization (transitioning from a Catholic to a Protestant England)
• Pan-Protestantism (wide-ranging, sometimes inchoate Protestant beliefs)
• Suasion and Coercion (either letting change occur over time by slow or lax enforcement or forcing change by punishment, including torture and death)
• Social Reform (sometimes; sometimes good and sometimes bad)

Newsom relies on some definitely Whiggish sources, especially in his evaluation of Mary I (he was writing before the mini-wave of re-evaluations of her reign), citing attacks on her intelligence and character in a footnote(!). He ignores the work of Christopher Haigh, John Bossy, and Eamon Duffy entirely, referencing A.G. Dickens, G.R. Elton, Jasper Ridley, etc. He cites J.J. Scarisbrick's biography of Henry VIII but not his The Reformation and the English People.

Newsom has some blunt opinions: he minimizes Cromwell and Cranmer to emphasize Henry VIII's methods and intentions; he opines that "the Edwardians went too far too fast" (216); that the Marian "obsession with persecuting heretics had much to do with the inattention to propaganda" (217), which Eamon Duffy's later Fires of Faith would prove not as true as Newsom thought in 2001, relying on Loades and Ridley; and even though he admires Elizabeth I's overall balance of Suasion and Coercion, he admits that "ideology obviates the need to establish the fact of a particular case" in her dealing with Catholics and real and supposed plots against her. (219)

In his estimation of the state of the Catholic Church in England before the Reformation, Newsom is insistent that there had been a "medieval distortion of the liturgicological meaning of the Mass" (212), emphasizing a new division between the priest and the people during the celebration of the Mass and the fact that the priest alone received both forms of Holy Communion (the Body and the Blood), while the people received Holy Communion infrequently. This means of course that he puts the emphasis on the Sacrament of Holy Communion and does not acknowledge the power of the Sacrifice of the Mass, nor the people's participation in that Sacrifice, nor the community of the Church, expressed in what Newsom calls the "extra-liturgical" elements of parish life, like the Corpus Christi Guilds--again, if he had read Eamon Duffy's The Stripping of Altars, first published in 1992, he might have had more corporate and less individualistic view of late Medieval Catholicism. As I read his commentary on the liturgical and devotional practices of that era it seemed that Newsom was viewing it through the lens of a post-Vatican II emphasis on the participation of the laity (I don't know if he is a Catholic or not!), finding a dualism that Catholics in the late Medieval era might not have deprecated as he seems to do. Some lay Catholics, as Duffy showed, attended Mass often--Henry VIII himself several times a day--whether or not they received Holy Communion more than once a year. They knew the sacrificial depth of the Mass and wanted to participate in it through attentive and informed attendance, preparing for the great annual events of Lenten penance, sacramental Confession, and reception of Holy Communion. Newsom emphasizes that Henry VIII destroyed all this extra-liturgical devotion during his religious settlement(s) and reformation, but cannot demonstrate that Henry did anything to replace it or was successful in making lay participation any more obvious or reception of Holy Communion any more equal between the laity and the priest--if any equality was achieved through the English Reformation settlements, it was probably by lowering the priest to the level of the laity, not raising the laity, as Newsom seems to perceive it!

I'll look at what Newsom says about the Stuarts, British Colonial America, and the founding of the USA, with an emphasis on religious liberty next week.