Posted on by Mark Movsesian

Winship on the Massachusetts Bay Colony

Michael P. Winship (University of Georgia) has written a book on Puritan government in the Massachusetts Bay Colony, Godly Republicanism (Harvard) (forthcoming 2012). The publisher’s description follows:

Puritans did not find a life free from tyranny in the new world—they created it there. Massachusetts emerged a republic as they hammered out a vision of popular participation and limited government in church and state, spurred by Plymouth pilgrims. Godly Republicanism underscores how pathbreaking yet rooted in puritanism’s history the project was.

Michael Winship takes us first to England, where he uncovers the roots of the puritans’ republican ideals in the aspirations and struggles of Elizabethan Presbyterians. Faced with the twin tyrannies of Catholicism and the crown, Presbyterians turned to the ancient New Testament churches for guidance. What they discovered there—whether it existed or not—was a republican structure that suggested better models for governing than monarchy.

The puritans took their ideals to Massachusetts, but they did not forge their godly republic alone. In this book, for the first time, the separatists’ contentious, creative interaction with the puritans is given its due. Winship looks at the emergence of separatism and puritanism from shared origins in Elizabethan England, considers their split, and narrates the story of their reunion in Massachusetts. Out of the encounter between the separatist Plymouth pilgrims and the puritans of Massachusetts Bay arose Massachusetts Congregationalism.

Posted on by Mark Movsesian

Jacqueline Rose on Church and State in Restoration England

The Restoration of the Stuart Dynasty in 1660 led to the Glorious Revolution in 1688, which, in turn, figured prominently in the iconography of the American Revolution 100 years later. Jacqueline Rose (University of St. Andrews) has published a new book on church-state relations during the Restoration, Godly Kingship in Restoration England (Cambridge University Press 2011) that looks quite interesting. The publisher’s description follows. — MLM

The position of English monarchs as supreme governors of the Church of England profoundly affected early modern politics and religion. This innovative book explores how tensions in church-state relations created by Henry VIII’s Reformation continued to influence relationships between the crown, parliament and common law during the Restoration, a distinct phase in England’s ‘long Reformation’. Debates about the powers of kings and parliaments, the treatment of Dissenters and emerging concepts of toleration were viewed through a Reformation prism where legitimacy depended on godly status. This book discusses how the institutional, legal and ideological framework of supremacy perpetuated the language of godly kingship after 1660 and how supremacy was complicated by the ambivalent Tudor legacy. It was manipulated by not only Anglicans, but also tolerant kings and intolerant parliaments, Catholics, Dissenters and radicals like Thomas Hobbes. Invented to uphold the religious and political establishments, supremacy paradoxically ended up subverting them.

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Albert on the Constitutional Politics of the Establishment Clause

Richard Albert (Boston College Law School) has posted The Constitutional Politics of the Establishment Clause. This article is based on his remarks at “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” a symposium recently held at Duquesne University School of Law.  Here is an earlier post on that Symposium.   The abstract of Albert’s article follows. – ARH

In these reflections presented at a Symposium hosted by Duquesne University School of Law on “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts – national interdiction, congressional disability, and state sovereignty – may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

Posted on by Marc O. DeGirolami

Campbell on 19th Century Approaches to Religious Exemptions

Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases.  The abstract follows.  — MOD

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores.  Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.

Posted on by Marc O. DeGirolami · 4 Comments

Classic Revisited: Amar’s The Bill of Rights

Today’s classic revisited is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998).  Obviously the book contains more than simply a discussion of the religion clauses, but I’ll focus on one of the book’s virtues in respect of that specific subject: Amar’s explanation of the Establishment Clause’s incorporation through the Reconstruction Amendments.  There is a near-universal consensus that the Establishment Clause as originally adopted did not apply to the states: states were free to retain their establishments (or, indeed, to create new ones).  The very purpose of the Establishment Clause was, according to Amar, to leave this issue to the states.  That underlying assumption, if accepted, fits extremely awkwardly with the issue of incorporation.  Moreover, unlike many of the other provisions of the Bill of Rights, which  announce restrictions on the exercise of federal power (“prohibiting” free exercise; “abridging” the freedom of speech; “violating” the security of persons against unreasonable searches and seizures, and so on), the Establishment Clause uses the more passive phrase “respecting” an establishment.  That language is far less clear about the sense in which establishments were thought to be problematic per se.  How then, to argue that incorporation as to the Establishment Clause was appropriate? 

Amar does not just assume the viability of incorporation, as did the Everson Court (with, somewhat suprisingly, not a single dissenting Justice).  Instead, he crafts an argument based in part on the approach of the national government to the federal territories, many of which were eventually to become states.  As an initial matter, the Establishment Clause was to apply to the territories (though Article IV grants Congress plenary power over the territories).  And what Congress could not do, the territorial agent could not do.  But, as Amar says, “to say that, for example, the Iowa territorial legislature ‘shall make no law respecting an establishment of religion’ was rhetorically to say something rather different than that Congress should make no such law.”  (249)  With time, as some of the territories became states, what had begun as a federalism provision took on more substantive content as a general anti-establishment principle applicable to all of government.  — MOD

Posted on by Marc O. DeGirolami

Drakeman’s “Church, State, and Original Intent”

Over the years, the Establishment Clause has become encrusted with various sorts of new meanings and applications.  I do not say this as a criticism (though I do think that some applications are regrettable) but merely as a description of the evolution of constitutional law as time has passed.  Those who are interested in a thorough and superb treatment of the original meaning of the Establishment Clause (and the original intentions of the framers, which is a different issue than the original meaning) will very much enjoy Donald L. Drakeman’s excellent Church, State, and Original Intent (CUP 2009), in which Drakeman uncovers evidence that the Establishment Clause was meant originally to do nothing more than forbid the establishment of a national church (as in England).  The publisher’s description follows.  — MOD

This provocative book shows how the United States Supreme Court has used constitutional history in church-state cases. Donald L. Drakeman describes the ways in which the justices have portrayed the Framers’ actions in a light favoring their own views about how church and state should be separated. He then marshals the historical evidence, leading to a surprising conclusion about the original meaning of the First Amendment’s establishment clause: the framers originally intended the establishment clause only as a prohibition against a single national church. In showing how conventional interpretations have gone astray, he casts light on the close relationship between religion and government in America and brings to life a fascinating parade of church-state constitutional controversies from the Founding Era to the present.

Posted on by Marc O. DeGirolami

Classic Revisited: Stokes’s “Church and State in the United States”

Studies of the constitutional law and history of the religion clauses often seem to be largely a late twentieth century phenomenon (this is not too surprising, since things began to heat up in earnest in the mid-’40s), but there are many notable predecessors.  One of these is Anson Phelps Stokes’s gargantuan effort, Church and State in the United States, first published in 1950 in three volumes.  It contains many historical details that are well worth savoring and which don’t seem to have made it to subsequent treatments (particularly church/state episodes in early America).  The three volumes were later condensed into one volume by the brilliant Leo Pfeffer, with some slightly polemical editing by Pfeffer as well (as committed a 1960s-70s-style separationist as one could find). 

As I could not find an image of the original Stokes volumes, I’ve attached an image of the 1964 Pfeffer abridgement.  But a few years back I looked through Volume I of the original — if you can get your hands on it, it’s well worth it.  — MOD

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Daniel Dreisbach et al., eds., “The Forgotten Founders on Religion and Public Life”

This book, The Forgotten Founders on Religion and Public Life (Notre Dame Press 2009),  is not brand-new, but it is a wonderful introduction to some lesser-known but deeply interesting thinkers in early America.  The book is a collection of essays on the views of these early Americans with respect to the role of religion in civil society, authored by several highly respected historians, most especially Daniel Dreisbach.  The publisher’s description follows.  — MOD

This interdisciplinary volume brings together essays on eleven of the founders of the American republic—Abigail Adams, Samuel Adams, Oliver Ellsworth, Alexander Hamilton, Patrick Henry, John Jay, Thomas Paine, Edmund Randolph, Benjamin Rush, Roger Sherman, and Mercy Otis Warren—many of whom are either little recognized today or little appreciated for their contributions. The essays focus on the thinking of these men and women on the proper role of religion in public life, including but not limited to the question of the separation of church and state. Their views represent a wide range of opinions, from complete isolation of church and state to tax-supported clergy.

These essays present a textured and nuanced view of the society that came to a consensus on how religion would fit in the public life of the new nation. They reveal that religion was more important in the lives and thinking of many of the founders than is often portrayed and that it took the interplay of disparate and contrasting views to frame the constitutional outline that eventually emerged.

Posted on by Marc O. DeGirolami

Lecture: Rakove on Free Exercise at Boston College

Those who are in the Boston/Chestnut Hill area on September 15 may want to check out this lecture (open to the public) by world famous constitutional historian Jack Rakove, “Beyond Belief: The Radical Significance of the Free Exercise of Religion,” at Boston College’s Clough Center for the Study of Constitutional Democracy (headed up by Ken Kersch, whose own writing on the history of 20th century legal conservatism is superb).  — MOD