The Whiggish story of ever-evolving liberty issuing from the Revolutionary decades and progressing straightforwardly over the next two centuries is dead. But so too, it seems, on the evidence of these two good books, is the revisionist tale of either “republican virtue” (often trumpeted by progressives) or “evangelical piety” (often trumpeted by Christian conservatives) governing the American mind and its understanding of rights, obligations, and collective identity. Both Steven K. Green and David Sehat see the narrative arc of American history as a continual tension between the religious and secular understandings of the American Constitution. Sehat is more doubtful that the Jeffersonian–Madisonian doctrine of separation of church and state ever commanded broad assent. The “myth” that America was born religiously free, though peddled by liberals, he argues, actually disables secularists who are struggling to create a public realm truly free from religious coercion. Green more readily accepts the proposition that the germ of religious freedom grew from its eighteenth-century origins along a non-continuous but nonetheless clearly secularizing trajectory.

Despite these differences, the two authors agree about much. They note the ascent of what Sehat calls the “moral establishment” in the early nineteenth century. Despite formal institutional disestablishment of religion in the Constitutional era, after the second Great Awakening in the early nineteenth century evangelical preachers and writers began to propose that the United States had always been a “Christian nation” and that Christianity pervaded the common law and undergirded all moral, political, and legal order. Proponents of this view, whom Green calls “Christian nationalists,” insisted that blasphemy laws and other restraints on “infidelity” or “indecency” aimed not to establish any religion but to protect the state and the citizenry from the licentiousness and anarchy that would follow upon the weakening of Christian moral restraints. Conservative jurists worried about the implications of Jacksonian democracy, the immigration of thousands of Catholics, and the growing reach of an amoral marketplace of words and images. They sought to contain those implications by using Protestant moral certainties to bully Americans into abiding by the tenets of the moral establishment.

Green argues with great force that, despite the apparent triumph of the “Christian nation” during the nineteenth century, a “second disestablishment” occurred, primarily in the press and public opinion, in the state courts, and eventually in the federal courts. This “gradual disestablishment . . . came about due to forces—commercialism, immigration, religious diversity—that Protestants resisted or accommodated only grudgingly (388).” Thus “the modern Court's church–state decisions were the natural culmination of 150 years of legal development, an evolution that in all important respects was complete by 1900” (390). Sehat locates a more abrupt change arising from the new universities and their commitment to independent research in the sciences and social sciences at the turn of the twentieth century. The legal profession, he argues, soon registered this new secular, scientific orientation in the jurisprudence of Louis Brandeis and Oliver Wendell Holmes. Some liberals claimed to be recovering the original civil libertarianism of the founders but, in fact, Sehat avers, the partisans of liberty were blazing a new path away from the Christian nation and toward a legal and political order that was more pluralistic, more pragmatic, and more secular. Sehat sees no gradual transformation, as Green does, from first to second (and, eventually, to third) disestablishment, but rather a sharp disjunction between the Christian nation and the new civil libertarianism of the twentieth century.

Both scholars, especially Green, thus breathe new life into a chastened version of the secularization thesis. That thesis, traced back to Max Weber and other nineteenth-century sociological thinkers, proposes that modernity disjoins the private from the public realm, consigning religion to the former and resulting, thereby, in the “disenchantment of the world.” In the last half-century it came in for strenuous criticism by religious scholars, among others, who argued persuasively that formal disestablishment of religion never “secularized” modern people's ultimate beliefs or their sense of the sacred.Footnote ¹ Whatever their views on the larger debate over secularization, Green and Sehat certainly agree about the secularizing consequences of the founders’ Constitutional work. Green makes clear that most of the founders—those who served in the Revolutionary state legislatures, the Congresses of the Confederation, the state constitutional conventions, and the federal Constitutional Convention—held decidedly separationist views, even those who believed that Christian moral teaching was crucial to the maintenance of civic virtue and public order. As Green puts it, “Responsibility for advancing those principles [of civic virtue] . . . lay with churches, not with civil authorities” (57). Moreover, the founders were nearly unanimous in declaring the foundation of legitimate government to be the people, not God. As John Adams, one of the more religion-friendly founders, put it, government “is founded on the natural authority of the people alone, without a pretence of miracle or mystery” (56). The Confederation Congress took the bold step of refusing to impose (as did most states) a religious test on elected delegates, and the Constitution famously avoided any reference whatsoever to God, even the boilerplate deistic apostrophes to a divine “Governor,” “Author,” “Designer,” “Providence,” and the like.

Green combs the debates within and beyond the Constitutional Convention to convincingly refute the view trumpeted by Justices Thomas and Scalia, and by legal scholars such as Philip Hamburger,Footnote ² that the First Amendment was meant to protect state establishments of religion from federal interference, not to deny the religious foundations of the republic. Although some politicians, writers, and preachers expressed such a Christian nationalist view, a far larger number saw establishments as tolerable but retrograde and doomed to wither away. As evidence of this attitude, Green notes that in the 1790s only three states retained religious assessments; nine others with such provisions had abolished them in the previous fifteen years. Defenders of assessments sounded more and more embarrassed by such measures, as well as by religious tests for office holding and voting. Certainly, all such requirements, along with calls for days of public prayer and thanksgiving, reveal the deep penetration by religious beliefs of Americans’ common ideas of virtuous citizenship and good government. But proposals at the state and federal levels for Constitutional or legislative acknowledgment of divine authority went down to defeat with great regularity. Moreover, hundreds of petitions and letters to delegates to the Constitutional Convention show that most Americans understood what became the first amendment in the Bill of Rights as a guarantor of the freedom of religious conscience, not a defense of existing state establishments of religion, as many latter-day Christian nationalists claim. Green makes clear that the great contrast between the post-Constitutional era and the previous era in which religious establishment was the norm proves that notions of religious liberty and separation of church and state were part of an evolving—and expanding—conception of freedom. The first disestablishment was very real and very secular in its trajectory.

By any measure, the nineteenth century revealed that a considerable portion of the American people retained—and even intensified—their devotion to Christian belief and religious practice. After the Second Great Awakening, more and more Americans in search of a sense of identity and community came to embrace Lyman Beecher's assertion that civil government “is a divine ordinance,” that religion is the “corner stone” of liberty, and that “the suppression of vice” is not only permissible but required of government, in league with a “moral militia” of Christian churches and reform organizations (Green 94–5). But this aggressive promotion of Christian moral authority always revealed its sense of beleaguerment before the forces of democracy, plurality, and marketplace amorality. It also revealed what latter-day Christian nationalists sought to deny: the assumption by most Christians in the early national years, even the most evangelical, that the nation had been conceived in the sin of secularism. As New York Presbyterian minister John Mason put it, in a 1793 sermon, “Should the citizens of America be as irreligious as her constitution, we will have reason to tremble lest the Governor of the universe . . . overturn, from its foundation, the fabric we have been rearing” (quoted in Green, 85).

As the nineteenth century wore on, the “[s]keptics, levellers and infidels” (Green, 104) in the utopian communities, the labor unions, the freethought societies, and the most radical wing of the Jacksonian Democratic Party convinced evangelicals such as Theodore Frelinghuysen that “religion . . . is everywhere set at nought” (107–8). Though they failed to convince Congress in 1829 to ban Sunday mail deliveries, the evangelical reformers schooled themselves in the art of turning religion into an engine of politics. Sabbatarianism made great strides in the states, as did efforts to defend religious oaths and blasphemy and obscenity laws. More importantly, in subsequent years, the Christian nationalists turned their attention with profound effect to even greater evils—slavery, “demon rum,” and Mormonism—the story of which Sehat skillfully narrates (though Green pays these movements scant attention).

In the realm of jurisprudence, the distinguished jurists James Kent and Joseph Story made higher law—i.e. the law of God—the basis of natural law and, therefore, the indispensable foundation of the Constitutional republic. As Kent put it in the famous blasphemy case People v. Ruggles of 1811, “whatever strikes at the root of Christianity, tends manifestly to the dissolution of civil government” (quoted in Green, 163). Joseph Story, whose Commentaries exerted immense influence over American legal thinking for a century after its publication in 1833, went even further. Green argues that Story's “lack of firsthand knowledge of the debates” (196) surrounding the First Amendment made it easier for him to claim not only that Christianity was part of the common law, but also that, at the time of the founding, “the general if not universal sentiment in America was, that Christianity ought to receive encouragement from the state” (quoted in Green, 197).

If conservative jurisprudence joined with the increasing religiosity of the evangelical population and the proliferating Christian reform movements to make the case for Christian nationalism, Green and Sehat show that these tendencies did not preclude countervailing gains for more secular tendencies. Unlike those historians who see the moral establishment as simply the reflection of popular Protestant values, Sehat makes the case that coercion, not consensus, supported that establishment. He pushes this argument a bit too far; coercion probably abetted a Christian moral consensus, though we will never know exactly how broad or how deep it was. In any event, during the nineteenth century, conservative judges and Protestant clergy had to reinforce with increasing strenuousity and decreasing success the bulwarks of the Christian nation against the secularizing and pluralizing forces that relentlessly pushed against them. Despite the immense energy and missionary zeal that evangelicals brought to the defense and promotion of the moral establishment, two phenomena eroded its battlements. First, a proliferation of sects within Protestantism (including Mormonism, whose Christian credentials came under considerable fire from most Protestants) eroded the Christian nationalists’ sense of moral solidarity and consensus. Second, the great increase in Catholic (and to a lesser extent Jewish) immigration made both legal practitioners and practical politicians take sharp note of the declining consensus among American citizens over fundamental questions of value. In the late nineteenth century, judges began to use secular arguments to buttress religious codes of conduct and belief; by the early twentieth century, their abandonment of explicit Christian rationales for Sabbath laws, obscenity statutes, and other regulatory measures signified a momentous turn of events. “The Christian-nation maxim was dead as a legal principle and retained only symbolic significance as a cultural paradigm” (Green, 390). Though Sehat grants that cultural paradigm far greater efficacy in shaping political feeling and legal logic over a longer period of time, neither author buys the argument made over the years by scores of clerics and politicians, and a few scholars, that America has always been and remains a nation whose fundamental political and legal values derive from Protestant Christianity.

Sehat focuses very broadly on the social, economic, cultural, and political forces that shaped public opinion and, slowly and only partially, the law. So he spends a good deal of time in Part II of his book investigating the interaction of religious ideas with abolitionist and women's rights movements. He shows that freethinkers and Quakers exerted an influence on both movements as powerful as that of the evangelicals who have received most of the credit in recent historical accounts. While the freethinkers, along with some Hicksite Quakers, Unitarians, Transcendentalists, and other liberal Christians, relied on radically individualist and sometimes secularist arguments, most Quakers argued for the radical freedom of the Christian conscience to communicate directly with God and thereby to defy any religious and secular authority that promoted or defended slavery or justified the subordination of women. Whatever the exact rationale the movements for freeing slaves or liberating women relied on, the evangelical proponents of the moral establishment never had a free hand or a secure dominance over those movements. Sehat argues provocatively that the recent emphasis on the evangelical unity of the Prohibition and women's suffrage movements is illusory—that, despite some overlap, these movements proceeded from and consolidated two quite separate and diverging political visions, the first based on the old moral establishment, the second on a secular conception of rights. Green argues in Part III of his book that, despite the strenuous efforts of the Christian nationalists in the post-Civil War era (which have been well narrated by Gaines FosterFootnote ³), the pressure exerted on legal thinking by secular radicals—and, ironically, by zealous religionists such as Mormons and Catholics—resulted in an increasingly pluralist conception of national identity. It also reinforced secularist justifications for regulatory laws and for the removal of prayer and religious instruction from public schools.

Sehat and Green join Susan JacobyFootnote ⁴ in restoring the secularists, especially Robert Ingersoll, to a place of honor in the narrative of American debates over separation of church and state and civil liberties.Footnote ⁵ And they show also quite clearly that Catholics (and Mormons), operating from a frankly anti-separationist premise, collaborated with secularists to keep the Christian nationalists off balance and on the defensive.Footnote ⁶ Catholics and Mormons insisted that, like them, Protestants wanted a state governed by religion, but were afraid to admit it. In trying to sacralize both the Constitutional disestablishment and the moral establishment, Protestants occupied inherently unstable ground. Secularists noted the same thing, but advocated disposing of the latter in favor of the former. Both authors vindicate the secularists as genuine civil libertarians, not Protestant supremacists in disguise. The latter characterization permeates the work of religious critics of secular liberalism, for example Elizabeth Fenton, who takes to its furthest extreme the view that civil libertarianism is nothing but an expression of Protestant hegemony: “the U.S. conception of religious pluralism and its corresponding ‘right of conscience’ drew their force from anti-Catholicism”; moreover, “anti-Catholicism has always been the lifeblood that sustains the U.S. liberal project.”Footnote ⁷

In firmly grounding the first disestablishment in the Enlightenment convictions of the founders, Green makes more plausible and understandable the second (and third). If the partisans of the Christian nation correctly assert that most Americans, and certainly most jurists, believed that Protestantism undergirded the American republican order, then these two authors make just as clear that “separation of church and state” was far more than a fugitive phrase in Jefferson's letter to the Danbury Baptists. They also make clear that the judiciary and the legal profession comprised some of the most conservative people in America and poorly represented the true diversity of experience and opinion in the developing nation. Like David Rabban's work, these books offer a powerful corrective to all legal history that focuses exclusively on higher-court decisions in characterizing American attitudes toward civil liberty. Green and Sehat show that legal thinking was more diverse than some imagine and, more importantly, that a very large number of Americans had a far more expansive notion of freedom than did the legal profession and especially the judicial elite.

Green argues that the growth of secularism in the late nineteenth century led to a counterattack from the evangelicals. Fighting to “put God in the Constitution,” and to institute nationwide bans on gambling, drinking, obscenity and polygamy, Christian nationalists won a few victories but suffered a larger number of defeats because the America they imagined no longer seemed real to the politicians, including many sympathetic evangelical Protestants, who had to make laws to govern an increasingly conflictual and pluralistic society. The National Reform Association, which led many of these crusades, failed to get its way whenever it seemed, like the Women's Christian Temperance Union, to be pushing an explicitly religious agenda. Jurists who sought to buttress the moral establishment needed more clearly secular arguments to reach that objective. They got them from Thomas Cooley, whose 1868 treatise Constitutional Limitations made the case for what Green calls “the Gilded Age Settlement,” which yoked libertarian vigilance for individual rights and government support of Christian morality. The government could “foster religious worship and religious institutions,” Cooley claimed, “as conservators of the public morals,” as long as its efforts were nonsectarian and were justified as measures promoting public health and welfare (Green, 360).

By 1892, when Justice David Brewer announced the Holy Trinity decision, which robustly asserted that America was a Christian nation, but insisted that such an assertion in no way violated the First Amendment, this line of thinking reached its apex. Historically and culturally, Brewer declared, Christianity had shaped the American experience and the American Constitution and continued to so. The very separation of church and state had, in fact, guaranteed the Christian fervor of the population, unmolested by ambitious politicians intent on using the state to endorse one or another sect. “This is a Christian commonwealth,” he declared (Green, 374), but insisted that no religious agenda should be enacted into law; indeed, he went further, arguing that “no man is reformed by statute” (376). Still, he allowed that law could require students to pray or forbid citizens to work on Sundays because such measures served the nonsectarian end of advancing the public welfare.

This Gilded Age Settlement endured for several decades. Courts continued to rebuff attempts to write the “Lordship of Christ” into the law of the land, while also condoning efforts to promote such secular ends as public “decency” and “order,” no matter how obviously these notions relied on Christian moral thinking and rhetoric. But, Green argues, by the turn of the twentieth century, “Protestants had become reconciled with the idea that, while culture retained Christian influences, the nation's civic institutions were secular” (385). By ending his story at this point, Green avoids having to explain the Christian nationalists’ greatest achievement, Prohibition. He would probably argue that the Anti-Saloon League's triumph reinforced the Gilded Age Settlement. Although the ASL sometimes called itself “the church in action,”Footnote ⁸ it rigorously made its case for Prohibition in terms of public health, family welfare, and law and order. Although no one doubted that the abolition of alcohol was pushed mostly by Protestants and was aimed mostly at Catholics, it is undoubtedly true that the Christian nationalists fought for a Constitutional amendment precisely because they knew that the courts might invalidate such a sweeping moral agenda without a new Constitutional mandate.

Equally important, perhaps, they also knew that even conservative politicians had learned—for example, in the controversy over the seating of the Mormon Senator-Elect Reed Smoot in 1906Footnote ⁹—that accommodating diverse ethnic and religious groups had become a political necessity. The conservative libertarianism of Justice Brewer, no less than the progressive libertarianism of his successors, Brandeis and Holmes, reflected a sober realism in the face of the growing pluralism of urban America. If Mormons had to give up polygamy and theocracy to enter the American mainstream, there was never any chance that evangelicals who opposed the Latter-Day Saints on purely religious grounds would prevail. Once it could be shown beyond a doubt that Senator-Elect Smoot personally, and the Church officially, had embraced monogamy, and that he and other Mormon politicians had learned to play by the rules of democracy (as non-Mormon residents of Utah testified during the Senate hearings), the Saint from Salt Lake City became simply one more strand, albeit an odd one in the eyes of many, in the plural fabric of the American polity.

Sehat's book picks up steam at precisely the point where Green's leaves off. He echoes the claims of several generations of historians that “social science finally gave opponents of the moral establishment a rival source of authority” (198). From the founders of the American Social Science Association, to Walter Lippman and Herbert Croly, to John Dewey, a new generation of intellectuals insisted that pragmatic experimentation and secular reason were the best guides to public morality and policy. Meanwhile, Social Gospellers forced Christians to recognize that revelation could be understood in multiple ways, one of which made the alleviation of suffering, not the maintenance of orthodoxy, the central mission of the Church in the twentieth century. Although Christian nationalism continued to animate the thinking of many jurists and citizens, many others increasingly adopted a perspective that sanctioned progressive restraint on the anarchic marketplace and libertarian restraint on the repressive state. That these two strains of political thinking might come into conflict with one another became apparent during World War I.

One other important change in the religious landscape affected the course of separationist thinking. Catholics became the dominant religious group in most American cities in the twentieth century. Protestants increasingly came to fear less that children in public schools would be denied Protestant moral indoctrination than that they would be subjected to Catholic indoctrination. That a “Christian nation (or state, or city)” might become a Catholic one drove many Protestants back to a reconsideration of the heritage of separationism and disestablishment. That reconsideration, as John McGreevy has shown, allowed anti-Catholics to use the high-minded rhetoric of civil libertarianism to push their cause.Footnote ¹⁰ Nevertheless, most secular separationists were not anti-Catholics and condemned with equal vigor Protestant and Catholic efforts to turn public schools into engines of religious conformity. Moreover, Jews played an especially potent role in both popular and legal explorations of the meaning of a secular and pluralistic society.Footnote ¹¹

Sehat's work confirms what several scholars have already made clear to historians: that the history of liberalism must be recast as a story of at least three diverging, though sometimes interweaving and intersecting, lines of thought: laissez-faire, progressive, and civil libertarian strains of liberalism. The classic liberalism of John Stuart Mill insisted on the right of the individual to be free of coercive control over conscience, expression, and action, except inasmuch as that action threatened to harm another person. Within this general view, the right to make free contracts in the marketplace was but one (and never the central) right of the individual person. For the laissez-faire economists, the right of contract became the main thing. The broadening of liberalism in the nineteenth century, as James Kloppenberg has shown, came from its encounter with socialism and, more generally, with industrial society.Footnote ¹² The third strand of liberalism—what came to be called “the new liberalism” or “progressivism”—included a clear-eyed acknowledgment that the modern corporation posed threats to individual liberty as great as those generated by the state, and, in fact, if left unregulated, might eventually overpower the state. Progressives saw that the state had an obligation to regulate not only its own tendencies to overreach, but also the oppressive behavior of corporations.

The tendency to subsume civil libertarianism under the rubric of laissez-faire, and then to see the tension between laissez-faire and progressivism as the central dynamic in liberalism's history, has narrowed and distorted our vision. Making the case against laissez-faire, progressive liberals developed a more expansive view of the power of governments to regulate a whole range of behaviors in order to better promote the general welfare. In their urge to discipline greedy and antisocial corporate “individuals,” however, many progressives asserted that the state might also pragmatically and unproblematically regulate free speech. Some of these progressives had no problem with the Comstock law, which censored “obscenity,” a form of speech which courts had long ruled deserved no First Amendment protection. During World War I, most progressives endorsed laws that restricted “seditious” speech—that is, the right of citizens to protest the war or the government policies designed to prosecute it.Footnote ¹³

Horrified by this wartime repression, some liberals came once again to appreciate the original insistence by classical liberal theorists that individual rights needed protection from the state, especially the warfare state. In so doing they also came to appreciate the arguments of “sex radicals” and other nineteenth-century proponents of a more robust conception of free speech.Footnote ¹⁴ However, they did so in a way that distinguished their civil libertarianism from laissez-faire. Indeed, the modern American habit of assigning the label “conservative” to laissez-faire liberals (who in other countries today are often called “neoliberals”) makes perfect sense only if we clearly understand this tripartite branching of liberalism that took shape at the beginning of the twentieth century. The New Deal rejection of laissez-faire and yoking of progressivism and civil libertarianism proved to be only one way to deal with the tensions among these strains of liberalism. Catholic politics, deeply progressive in its social policies, helped secure the alliance of Catholics with the Democratic Party. But the Church's deeply conservative “cultural” policies caused sharp conflict in the McCarthy era and later in the “culture wars” of the 1970s and thereafter. So, too, the illiberalism of postmodernist theorists such as Stanley Fish and Catharine MacKinnon and their odd partnership with conservative critics of free speech can come more clearly into focus only after noting that they follow a line traced by progressive liberals a century ago in exalting “social solidarity”—or “community,” or “tradition,” or “culture”—over the claims of “mere” individual rights, misunderstood as just another expression of laissez-faire.Footnote ¹⁵

In any event, Sehat traces the reinvigoration of civil libertarianism to the reaction of many Americans to the excesses of state repression during World War I and its immediate aftermath. Developing a more robust defense of “freedom” against “authority,” Justice Brandeis came to see the “right to be let alone” as central to the Constitutional legacy. With Justice Holmes and others, he increasingly argued that the Fourteenth Amendment had made the protections of the Bill of Rights apply to all levels of government. And he paved the way for the modern jurisprudence of civil rights and civil liberties that emerged full-blown at mid-century. In the 1930s, the Supreme Court increasingly dismantled the remnants of the moral establishment. In the 1940 Cantwell decision it explicitly abjured “any tendency to decide what constituted religion in a pluralized society” (Sehat, 223). Later, in the midst of World War II, the court ruled that Jehovah's Witnesses could not be made to salute the flag. As Sehat astutely notes, the court's growing approval of the progressive regulatory state actually harmonized with its growing insistence on the rights of individuals: “Only by vigilant protection of civil rights could the national government expand its power to regulate business without endangering liberty” (226).

“The liberal moment” that arrived under the Warren Court, therefore, is better seen as a culmination, rather than a sudden eruption of civil libertarian and secular jurisprudence. However, as Sehat makes clear, this new legal approach encountered immediate and forceful opposition. Fundamentalists and other evangelicals, from the vitriolic Carl McIntyre to the smoother Billy Graham, took aim at what the latter called “the sin of tolerance” (231). These evangelicals, and many conservative citizens and politicians, repaired to the banner of Christianity—or to the more liberal-sounding “Judeo-Christian tradition”—as an ideological standard around which to rally Americans against the specter of communism. With the support of Congress and President Eisenhower, the words “under God” were inserted into the pledge of allegiance and “In God We Trust” replaced “e pluribus unum” as the motto of the United States. Eisenhower regularly repeated the commonplace assumptions of Christian nationalism—for example, that “the Founding Fathers said it was a religious concept they were trying to translate into the political world” (quoted at 233). More substantively, the Supreme Court began to put a brake on its predecessors’ separationist tendencies. Despite affirming the “wall of separation between church and State,” the majority allowed a New Jersey scheme to fund the transportation of students to parochial schools. In dissent, Justice Wiley Rutledge properly assailed the contradiction between the majority's separationist principles and its “discordant” conclusion (236). But in doing so he launched what Sehat calls “the myth of American religious freedom.” Ignoring the century of struggle to defeat the moral establishment and create a new jurisprudence of civil liberty, Rutledge and other court liberals pretended that America had been born libertarian. Ironically, this positioned liberals as “the conservative keeper[s] of a unique American tradition that countered godless communism.” In this way, the liberals “forestalled criticism that [the Supreme Court] engaged in social innovation that might lead to a secularized public sphere, since it acted only as a defender of incursions on American freedom that, it claimed, has been well established” (239).

Historical inaccuracy led to “intellectual instability” among the liberals, according to Sehat. For example, in his majority opinion in the 1952 Zorach v. Clausen case, Justice Douglas affirmed both “the wall of separation” and an educational release program that allowed students to engage in religious exercises. In that opinion he sounded like a nineteenth-century Christian nationalist: “We are a religious people whose institutions presuppose a Supreme Being” (240). In stark contrast, a few years later in McGowan v. Maryland, Douglas stood out in lonely dissent against a Sunday closing law, insisting that the court “could not evacuate the religious origin of the Sunday laws” (247). Finally, in Engel v. Vitale, which invalidated prayer in public schools, Douglas located precisely the problem with the liberal insistence on the original libertarianism of the founders. He noted that both state and federal governments had long been “honeycombed” (249) with provisions that entangled church and state; the particular entanglement in this case was not an aberration, but the norm. The court, he implied, would have to take the Everson ruling to its logical conclusion and decisively disentangle religion and the state. But in its 1963 Abington decision banning Bible reading in Pennsylvania public schools, the liberal majority told the now familiar but false historical tale of enduring liberty threatened by new violations of the First Amendment.

Liberal incoherence opened the door to conservative attack, according to Sehat. When Justice Burger defended an opinion that validated the use of prayer to open state legislative sessions, he invoked the same myth of religious freedom that liberals had employed. An opening prayer could not possibly threaten the nation's “unambiguous and unbroken history of more than 200 years” of separation of church and state, he opined. Justice William Brennan saw the direction in which this line of historical analysis was leading and in Lynch v. Donnelly he blew the whistle. The majority ruled that a Christmas crèche on public grounds did not violate the First Amendment because of “an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789” (272). On the other hand, the majority also minimized the religious content of the crèche, purporting to see in it merely a traditional form of Christmastime celebration. But Brennan rightly insisted that “the Court's approach suggests a fundamental misapprehension of the proper uses of history in constitutional interpretation.” He lectured the majority on the relatively recent emergence of Christmas as a public celebration: the Puritans wanted nothing to do with it; evangelicals in the nineteenth century had revived it as one among many efforts to impose Protestant piety on the population; increasingly aggressive marketers of consumer goods adopted it for their own reasons. None of this more nuanced history led to the conclusions drawn by the majority about the constitutional propriety of using public funds to mount religious displays. Most importantly, Brennan called attention to the essentially coercive quality of such government sponsorship. Sehat makes this his central argument: the moral establishment is not just “civil religion,” a simple reflection of the religiosity of the American people; it is, rather, the coercive project of a conservative political minority intent on imposing cultural conformity on a radically plural and dynamic society.

While I am inclined to agree with Sehat's political conclusions, I do not find persuasive his suggestion that efforts to trace separationist or other civil libertarian principle to the eighteenth and nineteenth century are fruitless or wrongheaded. As Green makes clear, many paths led to the new civil libertarianism of the twentieth century, and some of them originated in the Enlightenment principles of the founders; the pluralist realities of nineteenth-century American society; and the pragmatic accommodations to that pluralism made by jurists, politicians, and other citizens over the decades. The “first and second disestablishments” were not simply “myths” concocted by desperate or misguided modern liberals, but true antecedents. Perhaps those antecedents are not fully adequate ground on which to build modern civil libertarian jurisprudence; perhaps more frankly innovative paths also needed to be forged. But defenders of separation of church and state need not abandon the rich resource of historical precedent and principle that Green has uncovered.