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Some further thoughts in connection with my A useinandersetzunguseinandersetzung 
with Gamwell: 1.

2. Suppose, for the sake of argument, that I'm right in my interpretation that "religion" in the First Amendment means "historical," or "empirical," religion, as distinct from "natural," or "rational," religion (to use Kant's terms in making the distinction). Suppose further that there's no other provision in the Constitution that proscribes stipulating any substantive principle of justice, whether Gamwell's principle of "justice as general emancipation" or any other. His inference from these suppositions,

Some further thoughts in connection with my Auseinandersetzung with Gamwell:

1. reason? And isn't this requirelnent already met by the First Alnendment, understood as proscribing both establishing religion and prombiting the free exercise thereof, "religion" being taken in Beyond my doubts about whether "religion" as used in the First Amendment First Amendment may be correctly understood in Gamwell's extended sense of the termthe term, there is the far from unimportant matter of what the First Amendment actually Amendment actually proscribes-namely, that "Congress shall make no law respecting ...." What  What it proscribes-and that explicitly-is not, as Gamwell seems to assume, "constitutional stipulation" of any substantive principle of justice, but, rather, "congressional stipulation" of any such principle-assuming, for the moment, his extended his extended sense of "religion." Of course, he might be using "constitutional" in  in his phrase "constitutional stipulation" in a broad rather than a strict senseto sense­ to mean what is substantively rather than formally "constitutional." But I see nothing see nothing in what he says to confirm that he uses the term in this sense. if . 

2. Suppose, for the sake of argument, that I'm right in my interpretation that "religion" in the First Amendment means "historical," or "empirical," religion, as distinct from "natural," or "rational," religion (to use Kant's terms in making the distinction). Suppose further that there's no other provision in the Constitution that proscribes stipulating any substantive principle of justice, whether Gamwell's principle of "justice as general emancipation" or any other. His inference from these suppositions, if I I understand him correctly, is that the Constitution would then be be "inconsistent with government by the people" (03/12/05). But would it, really? CoulclJx be "inconsistent" with y unless x either asserted or implied that y was false? More specifically: isn't the requirement of government by the  really? the people already met if only the deliberative process constituted by the Constitution the Constitution is "full" as well as "free," and so such that no terms of assessmentof assessment, including any ultimate terms of assessment, are immune to contestation to contestation and, where necessary, critical validation by appeal to experience and reason? And isn't this requirement already met by the First Amendment, understood as proscribing both establishing religion and prohibiting the free exercise thereof, "religion" being taken in my strict sense rather than Gamwell's pytpnned senseextended sense? 2 

3. One may perhaps sometimes get the impression, especially from Jefferson and Madison, that the framers/ratifiers would have been only too happy to have been able to establish deism as the state religion of the United States. But I strongly in.cline to think, on the contrary, that they would have judged deism, understood determinately instead of heuristically, to be entirely on a par with any "historical," or "ompirical," roligion* The distinction I make between "formal" and "material" fundamental  fundamental moral and political principles is not to be confused with Gamwellwith Gamwell's distinction between "formative" and "substantive" principles of justiceof justice. Just as "formal fundamental principles," as I understand them, are simply are simply an explicit theory as to the logical status of the material moral and political and political principles by which the (constituent) lawmaker has to be guided, "material fundamental principles/, as I understand them, include (what Gamwell what Gamwell calls) "substantive" as well as "formative" principles of justice. This This, of course,. is why I should not want to say that the political faith that, in my in my view, lies behind and is expressed in the U.s. Constitution is exhaustively expressed exhaustively expressed merely in its "formative" principles. 

4. The framers/ratifiers of the U.s. Constitution clearly seem to have

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at least tacitly recognized Gamwell's distinction between "formative"

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and "substantive" principles of justice; and I entirely agree with him that having

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a preunderstanding that clearly includes this distinction is of real help

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in understanding and appreciating what they actually did and did not do

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in producing the Constitution-even if it would be hard, not to say impossible,

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 to argue that they consciously intended to act in accordance with

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his distinction. But if I'm right, the all-important question for them was

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not whether a principle was, in Gamwell's sense, "formative" or "substantive,"

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 but whether it was, in their own sense, "natural," or "rational," or

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rather "historical," or "empirical." Correspondingly, their intent in the

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First Amendment was not to proscribe Congress's either establishing

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any substantive principle of justice or prohibiting anyone's freely arguing

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from such a principle, but rather to proscribe Congress's legislating either

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the "establishment" of ("historical," or "empirical") religion or prohibiting

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the "free exercise" thereof.

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One may perhaps sometimes get the impression, especially from Jefferson and Madison, that the framers/ratifiers would have been only too happy to have been able to establish deism as the state religion of the United States. But I strongly in.cline to think, on the contrary, that they would have judged deism, understood determinately instead of heuristically, to be entirely on a par with any "historical," or "empirical," religion similarly understood

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. In other words, they were, to my mind, as opposed to

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establishing either establishing deism or prohibiting the free exercise of any religion other than deism than deism as they were to either establishing any "historical," or "empirical," religion or prohibiting the free exercise of any such. 

What makes me think I'm right about this, finally, is that I quite reject the reject the conventional misunderstanding of Enlightenment thinkers generally, according  according to which they tended to judge the present, or the new, positively, even  even while judging the past, or the old, negatively. In my view, the cardinal principle of the Enlightenment is that all claims to validity, for the new no less than for the old, need to be critically validated by common human experience and reason whenever they become sufficiently problematic. But, then, establishing any religion, determinately understood, or prohibiting the free exercise of any such, even if it were the religion of deism, would contravene this cardinal principle. And I do not think for a moment that the framers/ratifiers would have ever been guilty of any such contravention. religion or prohibiting the free exercise of any such. 

The fact remains that their paramount concern in the First Amendment First Amendment was distinctively different from Gamwell's. What they wanted to wanted to rule out was not substantive principles simply because they were substantivewere substantive, but only any principles, substantive or formative, that were somehow were somehow immune to, or exempt from, critical validation, finally, on the basis of basis of experience and reason. But, unless I'm mistaken, they did all that was necessary was necessary to this end by framing and ratifying the First Amendment interpreted Amendment interpreted straightforwardly without extending the meaning of "religion" as Gamwell as Gamwell interprets it. 

5. Certainly, not the least advantage of my view is that it obviates any need any need to interpret the "justice," and so on explicitly called for in the Constitution the Constitution and the Declaration as Gamwell interprets them, i.e., as being used being used either in a merely heuristic (and so, in his terms, "formative") sense or as or as designating merely properly "formative" rights/liberties as distinct from any from any properly "substantive" ones. Provided only that all such terms are to be understoodbe understood, finally, on the basis of common human experience and reason, they  they may be accepted as having the straightforward "substantive" meaningIn my view, the cardinal principle of the Enlightenment is that all claims to validity, for the new no less than for the old, need to be critically validated by common human experience and reason whenever they become sufficiently problematic. But, then, establishing any religion, determinately understood, or prohibiting the free exercise of any such, even if it were the religion of deism, would contravene this cardinal principle. And I do not think for a moment that the framers/ratifiers would have ever been guilty of any such contravention. 4that meaning that some of them, at least--especially those used in the Preamble to the Constitutionthe Constitution-clearly seem intended to express. 

29 March 20052005