[...] The court began its punitive damages crusade in 1996, in the case of a man who sued BMW for failing to tell him that the new car he bought had been damaged and repainted. The man won $4,000 in compensatory damages and $2 million in punitive damages. The Supreme Court set aside the punitive damages award as so “grossly excessive” that it violated due process, but the court declined to lay out any clear standards for when an award was too high.

In 2003, in a fraud case against State Farm Insurance by a policyholder, the court struck down $145 million in punitive damages. It held that the award was excessive since compensatory damages were only $1 million. That 145-to-1 ratio was unacceptable. Due process generally required, the court held, a “single-digit ratio” between punitive and compensatory damages.

These rulings are remarkably “activist” by all the traditional measures. They take a vaguely worded constitutional guarantee — that no one shall be deprived of property without “due process of law” — and translate it into a right that is not at all apparent from the words’ plain meaning. They attempt to turn the guarantee into a precise mathematical formula. And they substitute the judges’ worldview for that of elected officials. If Oregonians believe punitive damages are too high, their legislature can impose a legal cap.

These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of “judge-made” rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW. Justice Kennedy wrote the State Farm “single-digit ratio” opinion, and Justice O’Connor and former Chief Justice William Rehnquist joined it.

The contrast with the court’s decisions on punishment of human wrongdoers is stark. In 2003, the court considered the sad case of Leandro Andrade, a father of three who was given a minimum of 50 years in prison under California’s tough “three strikes” sentencing law, for shoplifting $153.53 worth of videotapes from Kmart. He argued that his prison term violated the Eighth Amendment. The Supreme Court — in a majority joined by Justices O’Connor and Kennedy and Chief Justice Rehnquist — could find nothing excessive in the punishment.

Based on the Constitution’s words, Mr. Andrade certainly had a stronger case than BMW or State Farm. The Eighth Amendment expressly bars “cruel and unusual punishments,” which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their “due process” rights, a far greater textual stretch.

On the issue of what is “excessive” punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for “extraordinarily reprehensive” and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.

[...] Whatever the court decides, it should develop a constitutional theory of excessive punishment that covers human and corporate wrongdoers equally, as the Duke Law School Professor Erwin Chemerinsky and others have urged.

The current doctrines make no sense, least of all by the standards of conservative constitutional interpretation. Conservatives like to talk about the “framers’ intent.” The framers were deeply concerned about excessive punishment, and set forth their views on it in the Eighth Amendment. They would be perplexed that the high court they created believes their Constitution permits a father to remain in jail for 50 years for petty theft, but does not tolerate taking a fraction of the wealth from a company that kills people.

Not since the medieval church baptized, as it were, Aristotle as some sort of early — very early — church father has there been an intellectual hijacking as audacious as the attempt to present America’s principal founders as devout Christians. Such an attempt is now in high gear among people who argue that the founders were kindred spirits with today’s evangelicals, and that they founded a “Christian nation.”

[...]

Eighteenth-century deists believed there was a God but, tellingly, they frequently preferred synonyms for him — “Almighty Being” or “Divine Author” (Washington) or “a Superior Agent” (Jefferson). Having set the universe in motion like a clockmaker, Providence might reward and punish, perhaps in the hereafter, but does not intervene promiscuously in human affairs. (Washington did see “the hand of Providence” in the result of the Revolutionary War.) Deists rejected the Incarnation, hence the divinity of Jesus. “Christian deist” is an oxymoron.

[...]

When Franklin was given some books written to refute deism, the deists’ arguments “appeared to me much stronger than the refutations; in short, I soon became a thorough deist.” Revelation “had indeed no weight with me.” He believed in a creator and the immortality of the soul, but considered these “the essentials of every religion.”

What Allen calls Washington’s “famous gift of silence” was particularly employed regarding religion. But his behavior spoke. He would not kneel to pray, and when his pastor rebuked him for setting a bad example by leaving services before communion, Washington mended his ways in his austere manner: he stayed away from church on communion Sundays. He acknowledged Christianity’s “benign influence” on society, but no ministers were present and no prayers were uttered as he died a Stoic’s death.

Adams declared that “phylosophy looks with an impartial Eye on all terrestrial religions,” and told a correspondent that if they had been on Mount Sinai with Moses and had been told the doctrine of the Trinity, “We might not have had courage to deny it, but We could not have believed it.” It is true that the longer he lived, the shorter grew his creed, and in the end his creed was Unitarianism.

Jefferson, writing as a laconic utilitarian, urged his nephew to inquire into the truthfulness of Christianity without fear of consequences: “If it ends in a belief that there is no god, you will find incitements to virtue in the comforts and pleasantness you feel in its exercise, and the love of others which it will procure you.”

Madison, always common-sensical, briskly explained — essentially, explained away — religion as an innate appetite: “The mind prefers at once the idea of a self-existing cause to that of an infinite series of cause & effect.” When Congress hired a chaplain, he said “it was not with my approbation.”

In 1781, the Articles of Confederation acknowledged “the Great Governor of the World,” but six years later the Constitution made no mention of God. When Hamilton was asked why, he jauntily said, “We forgot.”

[...]

Allen neglects one argument for her thesis that the United States is a “secular project”: the Constitution mandates the establishment of a political truth by guaranteeing each state the same form of government (“republican”). It does so because the founders thought the most important political truths are knowable. But because they thought religious truths are unknowable, they proscribed the establishment of religion.

[...[

And in 1786, the year before the Constitutional Convention constructed the regime, Jefferson, in the preamble to the Virginia Statute for Religious Freedom, proclaimed that “our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

[...]

Since the founding, America’s religious enthusiasms have waxed and waned, confounding Jefferson’s prediction, made in 1822, four years before his death, that “there is not a young man now living in the United States who will not die an Unitarian.” In 1908, William Jennings Bryan, the Democrats’ presidential nominee, said his Republican opponent, William Howard Taft, was unfit because, being a Unitarian, he did not believe in the Virgin Birth. The electorate yawned and chose Taft.

[...]

In 1953, the year before “under God” was added to the Pledge of Allegiance, President Dwight D. Eisenhower declared July 4 a day of “penance and prayer.” That day he fished in the morning, golfed in the afternoon and played bridge in the evening.