Grim's Hall

The Founding:

When I suggest that a federal system in Iraq which permits Sharia law would be "like what America looked like at the founding," I mean that more or less literally. It's often forgotten that, in spite of the 1st Amendment, religious liberty at the founding was a patchwork of tolerance and intolerance. Some states were quite liberal about what they would accept, and some quite illiberal. Georgia, for example, at its founding pointedly refused to accept Catholics (as well as lawyers and slaves), but went to some trouble to settle Jacobite Presbyterians (and probably a quiet Catholic or two), German Lutherans, and Jews. In fact, George Washington addressed the Jews of Savannah during his visit to the city. The debates between Bostonians and the denizens of "Rogue's Island," more commonly known as Rhode Island, provide a similar play. States founded by Puritans tended to support religious liberty for Puritans, but no one else; Rhode Island tended toward a radical form of Calvanist determinism which argued that, since we were all predestined anyway, we might as well enjoy ourselves.

The 1st Amendment's declaration of religious liberty, then, really touched on only the Federal government. As the Supreme Court Historical Society notes,

Madison would have accomplished at the Founding, at least in part, what the Supreme Court was destined to hold 160 years later. Madison crafted his second proposal very simply: "No state shall violate the equal rights of conscience." The proposal, I hasten to add, went on to protect the freedom of the press and the right to trial by jury in criminal cases; it was not devoted 'exclusively to religious freedom.

Nor should it go unnoticed from these two measures that Madison entertained a bifurcated notion as to governmental power to establish religion: under his two proposals Congress clearly could not establish a national religion, but the States, in contrast, could establish their own state religions, at least if they did not infringe upon "the equal rights of conscience."

This too, upon reflection, is unexceptional. For at that time 5 of the 13 States maintained establishments of religion, the last of which, Massachusetts, was not dissolved until 1833.

It took the Civil War, and the 14th Amendment, to change the nature of the Bill of Rights from restrictions on the Federal government alone to restrictions on state governments as well. But this is just what I am after. The Civil War is the story of wealth and power collecting in the liberalized areas of the nation, and then turning to bring the countryside to heel. Following the Civil War, during the long period after Reconstruction, we see a second collection of power and wealth in the cities of the South, whose relative liberality allowed them to for the basis for (admittedly segregated) prosperous black communities, out of which in turn grew the Civil Rights movement. The key is to let liberalization happen organically. We need to focus on keeping the framework for such liberalization stable, while keeping friendly ties to the Islamic leaders so that they will side with us instead of terror groups. That means giving the conservative elements a stake in Iraq's government, perhaps even a controlling stake at the level of local provinces.