In history, perspective is everything. Given that, I should make it clear from the start that I approached Mark deWolfe Howe's history of the First Amendment and church–state relations as a historian who studies constitutions and constitution-making, and more specifically as a historian of constitutions who has written about how and why we do constitutional history.Footnote ¹ Viewing it from that perspective, I must admit I have mixed feelings about this book.

Parts of the book I appreciate enormously. The Garden and the Wilderness is a history of the evolution of a constitutional doctrine, which means that its scope goes well beyond a review of the principles and aspirations of the founding generation. Instead, Howe offers a glimpse at how thinkers in generations before the founders (most notably Roger Williams) thought of the relation between church and state, and then embarked on an extended discussion of how others grappled with that relationship in the founding generation and the generations that followed. There is, of course, nothing particularly novel about the idea that to understand constitutional principles we must go beyond the ideas of the framers, or the notion that we have a living constitution rather than one the parameters of which were set in the late eighteenth century.Footnote ² But Howe's approach to the evolution of constitutional doctrine is far more textured than most. In The Garden and the Wilderness, he argues that First Amendment doctrine evolved in response to lower court decisions that touched on the authority of church or state without explicitly addressing constitutional claims at all.Footnote ³ At the same time, Howe demonstrates that doctrinal changes reflected events on the ground, in churches and communities, as much as legal principles.Footnote ⁴ As that suggests, Howe's work is a study of the way society and social forces shaped ideas, and it is a model of that difficult approach.

Nor is that its only merit as a constitutional history. In contrast to studies that focus on a particular doctrine or constitutional provision, Howe's work assumes that American constitutional principles did not evolve in isolation. As he traces out the changing meaning of the First Amendment's religion clauses, Howe demonstrates that those changes echoed changes in other constitutional doctrines. The most obvious influence was the changing view of federal–state relations in the aftermath of the Reconstruction Era amendments.Footnote ⁵ But Howe also shows that other parts of those amendments, most notably the equal protection clause of the Fourteenth Amendment, influenced the way that the Court understood the balance that the First Amendment's conflicting commands about religion required.Footnote ⁶ In this respect, Howe's work is an ecological history that traces the ways in which changes in one part of the constitutional environment prompted subtle changes in other parts of the environment or even across the environment as a whole.

But the merits of the book are complicated by its style. The book is the published version of a series of lectures, and as a result Howe's argument about the First Amendment religion clauses is presented in engaging shorthand. His glancing treatment of issues can often be extremely frustrating. A reader can find a brilliant aside in the midst of the larger points Howe makes along the way, only to wish that Howe had actually engaged the issue hinted at in the aside. I was struck with just such a sense of incompleteness when I read Howe's treatment of the flag salute cases.Footnote ⁷ Those two cases, decided during World War II (in 1940 and 1943), dealt with the question of whether Jehovah's Witnesses who attended public schools could be compelled, in violation of their religious beliefs, to say the Pledge of Allegiance. In the first case, Minersville School District v. Gobitis, the Supreme Court, in an opinion written by Justice Felix Frankfurter, held that the students' First Amendment right to free exercise did not trump the school district's interest in instilling patriotism through the flag salute.Footnote ⁸ Three years later, the Court changed its mind. Over the dissent of Justice Frankfurter, the majority in the second case held that making the flag salute compulsory “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from official control.”Footnote ⁹ Howe offers these two cases as evidence of his idea that the Supreme Court's evolving sense of the First Amendment's protection of religious liberty came to be absorbed into “the broader freedoms of speech and press.”Footnote ¹⁰ And Justice Robert Jackson's opinion in the second flag salute case certainly confirms that analysis: the majority opinion in West Virginia State Board of Education v. Barnette was nothing less than an appeal to a general First Amendment protection for liberty of conscience.

But in passing, Howe made a second, less obvious point, suggesting that the opinions in these two flag salute cases were as much a dispute about the relationship between public education's role in the creation of citizenship as they were a disagreement over the scope of the First Amendment's protection of religious difference. His discussion hints at that debate over citizenship by highlighting a quote from Justice Frankfurter's opinion for the majority in Gobitis: “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”Footnote ¹¹ And toward the end of this section of the book, Howe reinforces that aspect of the cases by quoting Justice Hugo Black's concurring opinion in Barnette, which observed “Neither our domestic tranquility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but fear of spiritual condemnation.”Footnote ¹² Those quotes suggest that Howe saw the cases as a struggle over how to balance the need for some unifying bond to tie the disparate parts and peoples of the country together. And in other places Howe hints (for example, when he referred to Justice Frankfurter's dissent in Barnette as brilliant) at his own preferred position in that debate. But Howe did nothing to develop the issue.Footnote ¹³ Nor did he try to explain what a constitutional order that respected Justice Frankfurter's belief that public schools should reinforce national unity should look like, which is something of a problem given the United States' religious pluralism and the forces that to this day reinforce what Howe referred to as the polity's de facto establishment of a notionally protestant Christianity.Footnote ¹⁴ So while there is much to like and admire about this book, there are also aspects of it I regret. And I am particularly troubled by Howe's refusal to engage some of the issues his book raised.

In the end, however, I am most troubled by Howe's vague assertions about the book's purpose. In the opening pages, Howe criticized the Supreme Court's efforts at social and constitutional history: “By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.”Footnote ¹⁵ To his mind, this is particularly a problem with respect to the Court's rulings on the First Amendment's religion clauses: “Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely ‘legal history’—the story, that is, of the law's internal growth and development.”Footnote ¹⁶ But when the Court “lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.”Footnote ¹⁷

Although Howe does not propose to write the definitive correction to the Court's misinterpretations of the history of church–state relations, he asserts that in the book

My concern with this seemingly modest claim is twofold: I am not sure what Howe means by “an accurate story,” nor am I clear about what he thinks the relationship between history and constitutional theory should be.

It is certainly true that the Court's efforts at “history” often distort more than they illuminate.Footnote ¹⁹ And I certainly agree with Howe that “each of us is entirely free to find his history in other places than the ages of the United States Reports.”Footnote ²⁰ But I am not sure that the proper response to that problem is to assert that historians should write “an accurate story” that corrects those distortions. My problem is with Howe's suggestion that there is a single, accurate story to be told. This is not to say that I think historians should write history that is inaccurate. Certainly, there are histories that distort facts or omit evidence to support a particular thesis, and those histories are bad regardless of whether their underlying premise is reasonable or not.Footnote ²¹ But, as Howe notes on another page, students of history “conduct a groping search for past event and initial purpose.”Footnote ²² By definition groping efforts are inadequate to the task of capturing the past in any way that could be characterized as definitive or “accurate.” If historians must grope for the past, we must understand that their conclusions are attempts at accuracy, but rarely more.

More to the point, as Howe's own approach to the history of the religion clauses of the First Amendment demonstrates, the study of the past encompasses multiple stories that are revealed when different factors and perspectives are brought into play. To the extent that Howe's call for “an accurate story” is an attempt to confine history to the effort to come up with a single, accurate story of the past he seems to deny the importance or the value of the multiple points of view that are suggested, for example, by his own discussion of the ways in which Fourteenth Amendment law influenced interpretations of the First Amendment religion clauses. For all I agree that we need to move away from bad constitutional history, I cannot embrace an approach that suggests that good constitutional history will ultimately articulate a final, definitive account of the past.

Nor am I happy with Howe's suggestion that “an adequate theory of church and state in the United States” can be derived from history. Once again, the question is what precisely Howe meant by that statement. We do, of course, have a constitutional system in the United States that largely assumes that the past, in the form of precedent, will dictate present and future cases. But our constitutional system also allows for, and accepts the necessity of, the occasional escape from history.Footnote ²³ A book that recognizes the significance of the Barnette Court's rejection of its earlier decision in Gobitis, and closes with a discussion of the legitimacy of the Court's desegregation decisions, which overruled decades of precedent, is a study that understands that the Supreme Court can, and should, reverse past decisions on the grounds that they are no longer consistent with developments in other areas of constitutional law or in society, without regard for whether those decisions rest on an reasonable understanding of the past. It is, in that sense, a book that calls into question the suggestion that “an accurate story” is the only way to come up with “an adequate” constitutional theory.

That is not to say that revisions of history cannot or should not cause the Supreme Court to reassess its constitutional theories. History has filled that role in the past; the recent example of how scholarship altered the Supreme Court's view of the Second Amendment is an obvious case in point.Footnote ²⁴ But as Howe's own study, with its focus on expanding the scope of the past as a way of questioning the constitutional assumptions, suggests historical inquiry best influences constitutional interpretation and policy in a critical way, by destabilizing received wisdom and suggesting alternatives to the assumptions built up over time. That is not using history as the foundation for “an adequate theory”; it is using history as a reason for entertaining the idea that a newer theory is necessary. Better, from my perspective as a historian of the constitution, that we learn from what Howe did, rather than pay too close heed to what he said he wanted to do.