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361 lines
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<link rel="STYLESHEET" href="Origin%20of%20Our%20First%20Amendment%20&%20The%20Servetus%20Affair.css">
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<title>The Origins of Our First Amendment & The Servetus Affair</title>
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<h1 class="Heading1">
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<img src="Origin%20of%20Our%20First%20Amendment%20&%20The%20Servetus%20Affair-1.gif">
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The Origins of Our First Amendment & The Servetus Affair</h1>
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<p class="BodyAfterHead">
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<a name="pgfId=924045">
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</a>The Servetus Affair helps us understand
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our First Amendment. In fact, that episode with Servetus, was an event
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mentioned many times by the first drafter of the First Amendment,
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Thomas Jefferson. It indubitably explains what he meant by the
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rationale for the First Amendment as creating a separation of church
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and state.</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924073">
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</a>What a history lesson teaches is that the
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modern practice of distinct boundaries -- the church having domain over
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conscience and the state over true crimes -- was the real objective
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behind the doctrine of <a name="marker=923791">
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</a>
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separation of church and state as reflected in the First Amendment.
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(Reynolds v. U.S. (1879) (that metaphor "may be accepted almost as an
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authoritative declaration of the scope and effect of the amendment.")
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Thankfully, the First Amendment has largely succeeded in its original
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purpose. </p>
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<p class="BodyAfterHead">
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<a name="pgfId=931260">
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</a>However, because many modern jurists have
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forgotten the Servetus Affair, they are also slowly losing grip on the
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true meaning of and purpose of the First Amendment. As a result, the
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law is slipping backwards as the explosion of hate-crime legislation
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proves.</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924059">
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</a>
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Indeed, the concept of `<a name="marker=924056">
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</a>
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separation of <a name="marker=924057">
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</a>
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church and state' by <a name="marker=924058">
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</a>
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Jefferson in his famous letter of 1802 was meant to reflect the lessons learned from the Servetus Affair. <a name="marker=924060">
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</a>Jefferson
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was very familiar with the Servetus case, having written elsewhere that
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modern-day Calvinists were accusing a Dr. Cooper of "Unitarianism...as
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if it were a crime, and one for which, like Servetus, he should be
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burned...."<a href="#pgfId=924079" class="footnote">
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1</a>
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Jefferson also bemoaned modern day Calvinists who rely upon "their oracle Calvin who consumed the poor Servetus."<a href="#pgfId=924153" class="footnote">
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2</a>
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Jefferson spoke again of "the fire and faggots [i.e., burning logs] of Calvin and his victim Servetus."<a href="#pgfId=924191" class="footnote">
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3</a>
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In another allusion to the Servetus' case, Jefferson said "the
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Trinitarian idea triumphed not by reason but by the word of the fanatic
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Athanasius, and grew in the blood of thousands and thousands of
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martyrs."<a href="#pgfId=924097" class="footnote">
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4</a>
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</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924054">
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</a>
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Only with that context can one truly understand Jefferson's famous letter of 1802 in which he explains the rationale to the <a name="marker=924062">
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</a>First
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Amendment. He says it was created to form "a wall of separation between
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church and state." But this did not mean a wall at the public
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courthouse prohibiting entry of an emblem of the Ten Commandments. That
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is a childish application of the literal words about `separation.'
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Rather, the First Amendment had to do with the countours of punishment
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over conscience. Jefferson explained in this same letter to the Danbury
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Baptist Association (Jan. 1, 1802) what he meant. It matches precisely
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the lessons learned from the Servetus Affair: </p>
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<p class="Quote">
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<a name="pgfId=924116">
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</a>All attempts to influence [the mind] by
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temporal punishments or burdens, or by civil incapacitations, tend only
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to beget habits of hypocrisy and meanness, and are a departure from the
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plan of the Holy Author of our religion, who being both Lord of body
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and mind, yet chose not to propagate it by coercions on either, as was
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his Almighty power to do.<a href="#pgfId=924123" class="footnote">
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5</a>
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</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924115">
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</a>Thus, Jefferson meant that the state had
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no role any longer in imposing on the liberty of conscience (i.e., our
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First Amendment, transgressed by "meanness" in the Servetus Affair).
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Conscience was the domain of the church or private belief. At the same
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time, the church had no right to inflict in matters of conscience the
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punishments that belonged to the state, such as deportation,
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confinement or death (i.e., transgressed by Calvin's use of the
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criminal courts to punish heresy). Hence, the powers of the state were
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kept apart from the church, and the powers of the state was kept apart
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from issues of conscience which belonged to the kingdom of God. Hence,
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a wall. Luther's theory of <a name="marker=924063">
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</a>
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two kingdoms was a precursor of this view.<a href="#pgfId=924250" class="footnote">
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6</a>
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</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924294">
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</a>This is why Jefferson had no problem
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supporting the federal government giving money to build a Catholic
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church for an Indian tribe, or supporting Congress giving missionary
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money to preach the gospel to the `heathen.'<a href="#pgfId=924310" class="footnote">
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7</a>
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What was on his mind was the same concern when Jefferson wrote the
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religious liberty provision into the Virginia Constitution in 1776. It
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expressly put an end to any punishment for not attending church.<a href="#pgfId=924370" class="footnote">
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8</a>
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Hene, the wall of which Jefferson spoke was not to separate the church
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from the state's support and encouragement. (That may be a wise
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position anyway, but it was not on the mind of Jefferson or the
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founders.) Rather, what was on the mind of the founders was the
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Servetus Affair, and the need to put a wall separating the church from
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any longer using the state's power to punish the conscience. If you
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failed to believe, or failed to attend church, the punishment for that
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no longer belonged to the state.</p>
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<p class="BodyAfterHead">
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<a name="pgfId=923929">
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</a>Thus, reviewing the Servetus Affair helps
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remind us that separation of church and state did not originate to
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remove symbols of religion on public land or buildings. It did not mean
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to end support of the state for religion, whether a good idea or not as
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we might debate today. To think that was its purpose is to lose sight
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of the far more important message that the state should not impose its
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terrifying penalties for wrong belief. </p>
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<p class="BodyAfterHead">
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<a name="pgfId=924393">
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</a>
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This is why modern <a name="marker=923836">
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</a>
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hate crime legislation,<a href="#pgfId=923810" class="footnote">
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9</a>
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which exacerbates criminal penalties based on hateful beliefs, is so
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inimical to the underlying premise of the separation of church and
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state. The true theory behind that phrase was that matters of private
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belief, whether religious or otherwise, would no longer be punished
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with criminal penalties. Once hate crimes were legitimized in the U.S.,<a href="#pgfId=923863" class="footnote">
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10</a>
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and now exist in 43 states, it was no surprise that expressive gestures
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that do no physical harm but which `intimidate' others can now be
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criminalized, so says the Supreme Court.<a href="#pgfId=923820" class="footnote">
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11</a>
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</p>
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<p class="BodyAfterHead">
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<a name="pgfId=924284">
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</a>The better solution is to use wholesome
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teaching on civic responsibilities, supported by appropriate civil
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damages and/or injunctions to correct the effects of invidious bias and
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socially-unacceptable ideas (e.g., false and misleading defamation,
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civil rights violations, etc.). On the other hand, it should be
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strongly presumed as wrong to use criminal penalties to change the way
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people think. Hate-crime legislation should be subjected to the
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heighest scrutiny, given the original goals of the First Amendment. It
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was originally intended to correct for the abuse of criminal laws over
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conscience, as the Servetus Affair was etched into the minds of those
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who drafted the amendment. </p>
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<p class="BodyAfterHead">
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<a name="pgfId=924397">
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</a>Thus, whenever criminal penalties today
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are heightened purely on the basis of invidious thoughts, that hits at
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the core of what the First Amendment sought to eradicate. Having lost
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the memory of the Servetus Affair has caused the loss of memory of what
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was the core purpose of the First Amendment. This memory loss has
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opened the door to approval of hate-crime legislation.</p>
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</div>
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<hr>
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<div class="footnotes">
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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1.</span>
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<a name="pgfId=924079">
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</a>
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<a name="18701">
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</a>
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May 1820, quoted in The Jeffersonian Cyclopedia (1900) at 207. </p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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2.</span>
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<a name="pgfId=924153">
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</a>
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Edwin Scott Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Wm. B. Eerdmans, 1996) at 177.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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3.</span>
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<a name="pgfId=924191">
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</a>Thomas Jefferson, Memoir, Correspondence,
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and Miscellanies: From the Papers of Thomas Jefferson (F. Carr &
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Co., 1829) at 45-46.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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4.</span>
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<a name="pgfId=924097">
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</a>
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Charles B. Sanford, The religious life of Jefferson (1984) at 90.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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5.</span>
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<a name="pgfId=924123">
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</a>Social and Political Philosophy (John
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Sommerville & Ronald E. Santoni, eds.) (1963) at 247. The
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back-draft negative effect of zealous pursuit of mere heresy was that
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we lost the ability to prosecute the only religious crime which was
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ever legitimately also a public crime: blasphemy. But since we are not
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angels, and do not follow the Bible's requirement of two eye-witnesses,
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it appears we are far from ready to ever re-invigorate such a crime
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into modern codes.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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6.</span>
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<a name="pgfId=924250">
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</a>
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Justo L. González, The Story of Christianity (Harper Collins, 1984) at 36.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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7.</span>
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<a name="pgfId=924310">
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</a>David E. Guinn, Faith on Trial:
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Communities of Faith, the First Amendment, and the Theory of Deep
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Diversity (Lexington Books, 2006) at 31. </p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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8.</span>
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<a name="pgfId=924370">
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</a>
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Marion Levy, Leonard W. Levy, Seasoned Judgments: The American Constitution, Rights (Transaction Publishers, 1997) at 100.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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9.</span>
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<a name="pgfId=923810">
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</a>
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Once authorized by the Supreme Court in 1993, <a name="marker=924188">
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</a>hate-crimes
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are now used in 43 states. They provide enhanced penalties if a
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defendant in committing the crime acted with a purpose to intimidate an
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individual or group of individuals because of race, color, gender,
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handicap, religion, sexual orientation or ethnicity. A hate crime is
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not a crime where the hateful motive is relevant to proving the
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elements of crime, contrary to how some explain these law. So far, a
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hate crime is something already criminal which is punished more
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severely because the ideology (motive) behind the hate was a
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societally-rejected bias. </p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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10.</span>
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<a name="pgfId=923863">
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</a>
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In approving <a name="marker=923977">
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</a>hate-crime
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legislation, the Supreme Court engaged in a euphemism to resolve its
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contradiction of sound jurisprudence. It first admitted correctly this
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principle: "But it is equally true that a defendant's abstract beliefs,
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however obnoxious to most people, may not be taken into consideration
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by a sentencing judge." <a name="marker=923979">
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</a>
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Wisconsin v. Mitchell, 508 U.S. 476, 485 (U.S. 1993). However, then by
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labelling the enhancement as punishing the evil motive of selecting a
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victim due to an ideology (there racism), the Supreme Court said this
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was not punishing thought. Yet, it is indeed punishing thought, albeit
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a more dangerous thought that may lead to crimes. Dr. Phyllis
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Gerstenfeld in The Hate Debate and Policy Problems (Sage Publications:
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2004) mentions this criticism, and says "I admit to still feeling
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ambivalent on this matter myself." "I remain firmly on the fence."
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(Id., at 3, 37.) In other words, she feels queezy about adding
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penalties to an act that is already criminal solely because of the kind
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of thoughts held by the perpetrator. Perhaps the biggest problem is
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that such a statute, in the wrong hands, is an evil weapon, which we
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saw how it worked in <a name="marker=923978">
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</a>
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Calvin's hands in 1553. Today, any prosecution of any crime, if a
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prosecutor wishes to intimidate a defendant, can turn your life upside
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down. The prosecutor simply starts interviewing all your friends and
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family to find out any hateful thoughts you ever expressed about a
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person in the category of your alleged victim. If it is there, the
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prosecution becomes a vendetta.</p>
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</div>
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<div class="footnote">
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<p class="Footnote">
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<span class="footnoteNumber">
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11.</span>
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<a name="pgfId=923820">
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</a>"The First Amendment permits Virginia to
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outlaw cross burnings done with the intent to intimidate because
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burning a cross is a particularly virulent form of intimidation." <a name="marker=924189">
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</a>
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Virginia v. Black, 538 U.S. 343, 363 (U.S. 2003)(held without such limitation, it was unconstitutional).</p>
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</div>
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</div>
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</body>
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</html>
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