“[T]here is an ambiguity in the book’s subtitle. “The man who made the Supreme Court” might signal Marshall’s outsized role in fashioning the Supreme Court in his own self-image. There are some biographies, as Kevin Walsh has noted in his review in these pages of another recent Marshall book, that read Marshall as a kind of Romantic hero—the American Werther or Cagliostro of the judiciary. But there is another, and perhaps better, interpretation of the subtitle: that distinctive features of Marshall’s character as a man subtly but powerfully influenced the Court’s development under his stewardship.”
Many people don’t realize it, but for most of our history the Establishment Clause didn’t figure prominently in Supreme Court litigation. In fact, the Court’s first major Establishment Clause case, Everson v. Board of Education, didn’t come until 1947. That’s not to say that Americans didn’t think much about the Clause before that time–obviously, they did. But the Court didn’t seriously consider the meaning of the Clause until after the Second World War. Why did it take so long, and why did it happen then? Could have been many reasons, I suppose: the decline of the Protestant cultural ascendancy; the maturing of minority religious communities in American society; the beginnings of secularism as an important fact in American life. Anyway, it’s a fact that the Court was a relative latecomer to debates about church-and-state in America.
A new book from Willamette University Law Professor Steven K. Green documents the history of church-state relations in the generation after Everson. The book is The Third Disestablishment: Church, State, and American Culture, 1940-1975. The publisher is Oxford University Press. Here’s the description from the Oxford website:
In 1947, the Supreme Court embraced the concept of church-state separation as shorthand for the meaning of the Establishment Clause of the First Amendment. The concept became embedded in Court’s jurisprudence and remains so today. Yet separation of church and state is not just a legal construct; it is embedded in the culture. Church-state separation was a popular cultural ideal, chiefly for Protestants and secularists, long before the Supreme Court adopted it as a constitutional principle. While the Court’s church-state decisions have impacted public attitudes–particularly those controversial holdings regarding prayer and Bible reading in public schools–the idea of church-state separation has remained relatively popular; recent studies indicate that approximately two-thirds of Americans support the concept, even though they disagree over how to apply it.
In the follow up to his 2010 book The Second Disestablishment, Steven K. Green sets out to do examine the development of modern separationism from a legal and cultural perspective. The Third Disestablishment examines the dominant religious-cultural conflicts of the 1930s-1950s between Protestants and Catholics, but it also shows how other trends and controversies during mid-century impacted both judicial and popular attitudes toward church-state separation: the Jehovah’s Witnesses’ cases of the late-30s and early-40’s, Cold War anti-communism, the religious revival and the rise of civil religion, the advent of ecumenism, and the presidential campaign of 1960. The book then examines how events of the 1960s-the school prayer decisions, the reforms of Vatican II, and the enactment of comprehensive federal education legislation providing assistance to religious schools-produced a rupture in the Protestant consensus over church-state separation, causing both evangelicals and religious progressives to rethink their commitment to that principle. Green concludes by examining a series of church-state cases in the late-60s and early-70s where the justices applied notions of church-state separation at the same time they were reevaluating that concept.