INTRODUCTION
“The United States Supreme Court's devotion to the original meaning of the First Amendment's ‘establishment clause’ began in the 1870s and continues to the present.” These words preface Donald L. Drakeman's recent Church, State, and Original Intent. They concern the original meaning of the establishment clause prohibiting Congress from making laws “respecting an establishment of religion.” Drakeman, long prominent in church-state debates, steers between the two well established camps of establishment clause interpretation. Separationists require a sturdy wall between church and state preventing government accommodation or support of religion and religiously affiliated institutions; non-preferentialists allow accommodation and certain types of support on an equal, nondiscriminatory basis. Drakeman agrees with neither, but instead offers a humble original meaning of the establishment clause as simply preventing a single national church. In making this argument, he highlights the pervasive importance of originalism for separationists and non-preferentialists alike: “However they emerge on their ultimate interpretation of the establishment clause, and whatever facts they marshal in support of those interpretations, these scholars and jurists are originalists, one and all” (Drakeman Reference Drakeman2010, vii–ix, 18).
Drakeman's description of originalism in establishment clause interpretation is helpful in understanding decades of post-World War II scholarship and jurisprudence, but insufficient to clarify important interpretive trends since the turn of the new millennium. Those trends are the subject of this article. For most decades in the post-War period, writers, scholars, and jurists on either side of the church-state debate have indeed pursued the kind of original meaning Drakeman describes: “how the establishment clause may have been understood . . . around the time that it was adopted and ratified”(Drakeman Reference Drakeman2010, 19; O'Neill Reference O'Neill2005; Powell Reference Powell and Rakove1990). However, for about the last decade, leading separationists have moved steadily away from this type of original meaning interpretation of the establishment clause — classical original meaning — for their jurisprudence and policy claims. In fact, prominent separationists have abandoned classical original meaning in response to scholars who have unveiled an array of non-separationist ideas and practices in post-Bill of Rights American history, including myriad connections between religion and government, and the influence of religion in the Republic's law, politics, policies, social norms, and education. Yet even while abandoning the pursuit of classical original meaning, separationists continue to try to ground their normative policy prescriptions in establishment clause mandates. They attempt this balancing act by recourse to evolutionary processes in history. They consider non-separationist practices throughout American history in the context of a historically evolving establishment-clause mandate of separationism.
The allure of these types of evolutionary narratives derives largely from their familiarity. One popular American history textbook is called The American Promise; a well known political journal, The American Prospect. Both titles suggest historical movement, something begun at one point in history and subsequently developed and fulfilled over time. A similar sense of historical maturation informs important academic work. Many have argued, persuasively, that the American Revolution encouraged incipient economic, social, and political behaviors that continued to develop over time, eventually changing the early Republic into a more economically liberal and politically democratic polis. Such narratives view the Revolution as both reflecting and fostering an historical dynamic that developed across decades (Appleby Reference Appleby1992; Reference Appleby1984; Banning Reference Banning1978; Maier Reference Maier1997; McCoy Reference McCoy1982; Wood Reference Wood2009; Reference Wood1992). A more compelling version of this type of narrative is Lincoln's use of the ideals of the Declaration of Independence at Gettysburg followed a century later by Martin Luther King, Jr.'s elaboration on the theme before the Lincoln Memorial. Lincoln argued that the original declaration of equal rights and legal equality at Independence, though unfulfilled, was intended as an aspirational and unfolding ideal, and King followed demanding fulfillment.
These types of evolutionary narratives often include moral and political reforms in American history related to the development of the Republic's fundamental or constitutional law. The advance of liberal and democratic forces in the generations following the Revolution, for example, yielded constitutional doctrines favoring greater rights in property and political participation. The Declaration-Gettysburg-'63 narrative included a much longer embattled history of moral struggle generating the fundamental law of racial equal treatment and non-discrimination. One reason such evolutionary narratives are often compelling, in other words, is because they include a sense of progression in the Republic's constitutional or fundamental law toward legal doctrines readers tend to favor as embodying greater justice.
This sense of the progression of fundamental law in American history also characterizes the narratives of separationists who have abandoned classical original meaning for evolutionary processes in history. Such separationists, or neo-separationists, do not simply track or analyze changes in constitutional doctrine, but characterize those specific changes that have yielded greater separation between church and state through the nation's history as incipient in the Republic's founding, part of an initial declaration of church-state principle that was originally inchoate, but aspirational, and thus increasingly formed and fulfilled through the interactions and evolutions of history. Their narratives are a genre of sorts, a modern literary form resembling Lincoln's conceptualizations of historical development.
In employing such narrative strategies, however, which can be persuasive at times, neo-separationists exhibit a periodically glaring tendency of conflating fundamental law with ideas, proposals, or prescriptions. That is, they too often sweep myriad separationist ideas into their progressively evolving narratives, ideas which have never been enunciated as fundamental law, indeed which have never been law at all, but policy prescriptions reflecting individual perspectives or preferences. This failure clearly to distinguish between law and idea or law and prescription is an endemic problem in some of the most important recent accounts of the separation of church and state in American history. The problem requires attention if neo-separationist narratives and thought processes are to possess the integrity required to shape the field of establishment clause history, required if further establishment clause conversation is to be meaningful in these narrative contexts.
In addition to distinguishing clearly between law and prescription, neo-separationist narratives might also be more sensitive to the prospects for the long-term continuity or fluidity of fundamental law. Evolutionary narratives, after all, often consider changes in constitutional doctrine in the context of the social and political pressures precipitating such changes. Sensitivity to these pressures might also include the years, decades, and even generations following and not just preceding Supreme Court enunciations so as to weigh the prospects of legal continuity over time. This sensitivity requires, not challenge to judicial supremacy, but simply recognition that constitutional doctrine can change or evolve within the context of settled fundamental law.
Consider again the Declaration-Gettysburgy-'63 narrative. It includes the development of a fundamental law that is now settled in the sense of not only being articulated as constitutional doctrine, obviously key, but also widely perceived as legitimate and stable across a broad spectrum of American society. The settled nature of racial equal treatment today reflects, at least in part, the historical processes inherent in the narrative itself which included various decisions by multiple American institutions such as state and federal legislatures, courts, and executives, including passage of the Fourteenth Amendment and its later application in Brown v. Board of Education (1954). Yet within this settled fundamental law framework, constitutional doctrine remains fluid, as in the application of equal protection in university admissions. Justice O'Connor suggested as much when in upholding the University of Michigan Law School's affirmative action policy she noted that “race-conscious admissions policies must be limited in time.” Her suggestion was that while equal protection is settled law, the constitutionality of race-conscious admissions policies within that law is “temporary” (Grutter v. Bollinger 2003, 309).
Understanding the potential for fluidity within constitutional doctrine is useful in considering evolutionary thought processes because it implies an acknowledgement, much needed at times, that the unfolding of history is not uni-linear and that what might be constitutional law at any moment in time may or may not be the final telos of an originally inchoate founding principle. To cite a case on point, the notion of prohibiting direct government financing of religion is constitutional doctrine. Yet the Supreme Court has recently established that within this doctrine the indirect channeling of public money to religious schools through parental-choice voucher programs is constitutional (Zelman v. Simmons-Harris 2002). Such fluidity within settled church-state law indicates that the unfolding of history often deviates from imagined linear progressions, as is characteristic of evolution itself.
What follows, then, is a three stage analysis of the writing of establishment clause history. The analysis is not an exhaustive treatment of all relevant literature, but highlights influential interpretive trends of late that abandon the classical original meaning pursuit of the establishment clause by seeking a fundamental law of separationism in evolutionary processes. The first section is a brief review of leading examples of what can now be considered the classical church-state literature of the post-World War II period. This review establishes the shared understanding and approach of separationists and non-preferentialists in their pursuit of classical original meaning throughout most of the post-World War II decades. Second is a consideration of two texts which began the neo-separationist quest for fundamental law in the abandonment of classical original meaning in the first few years following the turn of the 21st century, Derek H. Davis's (2000) Religion and The Continental Congress, 1774-1789: Contributions to Original Intent and Mark Douglas McGarvie's (2004) One Nation Under Law: America's Early National Struggles to Separate Church and State. Both texts significantly blur law and prescription while at times suggesting historical uni-linearity. Third is a consideration of two further texts, Steven K. Green's (2010) The Second Disestablishment: Church and State in Nineteenth-Century America and David Sehat's (Reference Sehat2011) The Myth of American Religious Freedom. Green's work is the most sophisticated neo-separationist quest to date, with some of the same problems inherent therein, while Sehat's represents a crossroads of sorts. It introduces a potentially new direction in establishment clause conversation while drawing on long-standing elements of the separationist discourse. These ambiguities indicate the persistent difficulties of separationist endeavors. A final section offers concluding thoughts.
THE PURSUIT OF CLASSICAL ORIGINAL MEANING
Since the close of the Second World War, writers, scholars, and jurists have debated the original meaning of the First Amendment's establishment clause. That debate generally focused on the meaning of the establishment clause at the time that it was adopted and ratified. Both the advocates of the separation of church and state as well as those of non-preferentialism were equally comfortable, indeed confident, in pursuing this classical original meaning. Both camps thought the legitimacy of their constitutional understandings and policy prescriptions inhered in their fidelity to the American founding and the religion clauses of the First Amendment. Leonard Levy was this sort of classic separationist (Levy [1986] Reference Levy1994, xix).Footnote 1 In The Establishment Clause: Religion and the First Amendment, Levy confidently engaged the founders' original intent to correct those who thought the Constitution required something less than the wall of Jefferson's pen. “[N]onpreferentialists are wrong about the framers' intentions,” he assured unequivocally; they may “wish to be bound by the original intent of the framers of the establishment clause because they mistakenly think that the original intent supports their view. In fact, it contradicts their view” (Levy [1986] Reference Levy1994, xvii-xviii). Variants of this originalist assurance among classical separationists, appealing in its self-confident clarity, are easily multiplied, such as James E. Wood, Jr. (Reference Wood1985), Religion and the State and Robert S. Alley's (1985) James Madison on Religious Liberty.
Separationists, to be sure, did not monopolize the originalist market. There were non-preferentialist competitors such as Michael J. Malbin (Reference Malbin1978), Religion and Politics: The Intentions of the Authors of the First Amendment and Robert L. Cord (Reference Cord1982), Separation of Church and State: Historical Fact and Current Fiction, both of whom made use of founders' intentions and original meanings. Their views made headlines in 1985 when Justice William Rehnquist cited Cord in dissent in Wallace v. Jaffree (1985, 104), which prohibited silence for meditation or prayer in public school. The dissent drew fire from Levy and Alley, the latter scolding “those in 1985 who would prefer to view the Constitution and the Bill of Rights through the prism of seventeenth-century Virginia establishment and Puritan New England.” The First Amendment, he confirmed, “completely vitiates such an interpretation” (Alley Reference Alley1985, 15). The following year, Douglas Laycock reaffirmed this classical separationist commitment in an article in William and Mary Law Review entitled “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent” (Laycock Reference Laycock1986). Levy also claimed a few years later: “Nowhere in the making of the Bill of Rights was the original intent and meaning clearer than in the case of religious freedom” (Levy [1986] Reference Levy1994, xxii).
The classical argument thus saw both sides challenge each other with clear discussions about the intentions and original meanings of the “framers and ratifies.” Each side had deeper roots, Leo Pfeffer's (Reference Pfeffer1953) Church, State, and Freedom for the separationists and Antieau, Downey, and Roberts (Reference Antieau, Downey and Roberts1964), Freedom from Federal Establishment for the non-preferentialists. Each also carried the discussion forward, Isaac Kramnick and R. Laurence Moore (Reference Kramnick and Moore1996), The Godless Constitution and William R. Estep (Reference Estep1990), Revolution within the Revolution: The First Amendment in Historical Context. With all these texts behind him, along with many others, Drakeman can thus say that scholars and jurists of the establishment clause are originalists, one and all.
BEYOND CLASSICAL ORIGINAL MEANING
Despite the recent ubiquity of classical originalists, something significant has recently changed in the interpretive trends regarding the establishment clause. Prominent separationists of the last decade or so are giving up on the original intentions and meanings of the American founding and the establishment clause as a primary historical basis of their constitutional understanding and policy proposals. The change is not easy to date precisely, but is discernibly notable in the post-1990s work of Derek H. Davis.
Davis's prominence in church-state discussions is long standing. For years, he edited the Journal of Church and State. He also directed the J.M. Dawson Institute of Church-State Studies. He is unique among the scholars considered here in writing from a Christian perspective. He described it as “A Christian Separationist Perspective,” which he explained with italics: “In the end, all Americans must recognize that . . . it is the private expression of religion in private spheres that is the heart of religion” (Davis Reference Davis, Monsma and Soper1998, 157). This sentiment reflects deep currents in evangelical culture and history, dating, at least in American terms, to Roger Williams in the 1630s. European roots are deeper still. The accentuation of the “private,” though too restrictive for some, aims to protect religion from potentially corrupting worldly influences, such as government. Translated into policy, such restriction of religion to the private sphere is the separation of church and state. With this, Davis followed classic separationists in battle against the non-preferential trends of the 1980s embodied on the bench by Justice Rehnquist. Alley fretted about “theocracy” (Alley Reference Alley1985, 15); Levy updated his preface (Levy [1986] Reference Levy1994); and Davis (Reference Davis1991) offered Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations. In dissenting from Rehnquist's Wallace v. Jaffree dissent, Davis worried that contemporary trends favored Rehnquist's side (Davis Reference Davis1991, xvii).Footnote 2 He sought succor, as his title suggests, in the original intent of the framers. The analysis of such intent was of the classical kind, focused on founding documents related to the writing, debating, and ratifying of the First Amendment's establishment clause. Davis analyzed later developments against the original intent foundation, but without recourse to a trans-historical narrative presenting those developments as evolved from inchoate founding beginnings. His analyses in the early 1990s were straightforward and clean (Davis Reference Davis1991, 29–62).Footnote 3
Yet Davis's subsequent “Contributions to Original Intent,” as he subtitled his Religion and The Continental Congress in 2000, struck a discernibly different note. These contributions were less about the content of original intent as that concept was traditionally understood than about redefining the concept. Original intent was now part of an historical process evolving through the 1830s: “While the meaning of religious liberty has always had many dimensions, the revolution for religious liberty that occurred in America from the 1630s to the 1830s had as its chief component the proscription of financial support of churches by civil authority. This was a revolution ‘in process’ in 1787.” As a point of importance, not fleeting impulse, Davis repeated the developing-process perspective: “a 200-year movement for religious liberty in America (1630s to 1830s) was in process, still undeveloped, still incomplete in the years where we typically look for original intent (1774–1791).” This new view to the 1830s was a curious construction of original intent for a book entitled Religion and the Continental Congress and dated by its author according to the general parameters of classic intent, 1774–1789. Redefining original intent as process, however, allowed Davis to conceptualize, observe, and write about it in progressively evolutionary terms. His subject, he noted, was “the progressively evolving intentions of the founding fathers.” Here in an early stage of development was a re-conceptualized founding as progressive evolution coupled with the tacit discarding of classic original intent. This progressive evolution, though, was not just a style. It purportedly reflected the nature of the subject matter itself: “the meaning of religious liberty in America was progressive” (Davis Reference Davis2000, 33–34, 37, 227, 202).
The progressive evolutionary approach was not without rationale. The chronology needed widening, Davis explained in a section on “The Quest for Original Intent,” because of an apparent dearth of evidence and clarity: “The surviving data of the founding period, especially the debates of the founding fathers in formal session, as well as the records of the states' ratification proceedings, are regrettably inadequate.” Classical original intent would simply no longer do. Or at least it could not provide unequivocal support for the separationist position. It would thus have to be discarded. Yet the manner of disposal was astute: keep the phrase, drop its classical import, and change its meaning: “In terms of the development of the desirable relationship between religion and the state, the founding era (1774–1791) was a period of transition, and thus ‘original intent,’ in terms of its implementation, is sometimes better located in the post-founding era.” This neo-originalism of the progressively evolving founding came with counsel about how things must always proceed henceforth. Evolutionary meaning was a matter of necessity, not choice, as if needed to bail out a failing endeavor: “We must always look beyond the founding era for the latent effects and outcomes of an inchoate ‘original intent’” (Davis Reference Davis2000, 14, 135, 37). The 1830s became the terminus for this new “look beyond” for evidence of inchoate intent because of the seven states that allowed religious establishments after the ratification of the First Amendment — that is, allowed the “financial support of churches by civil authority” — the last one, Massachusetts, disestablished in 1833.
Davis coupled his concerns with deficient founding evidence with a second reason for a new understanding of original intent. He acknowledged that the First Amendment's prohibition on a national establishment coexisted in the founding and beyond with myriad tangles between religion and government, church and state, including but not restricted to systems of public taxes for churches. Considering such systems, he suggested the prohibition on financial support of churches at the national level provided a model for emulation, helping create and sustain momentum in the states leading sometimes quickly, sometimes slowly, toward disestablishment at that level as well: “While the meaning of the First Amendment's prohibition against Congress's passing laws ‘establishing’ religion was open to some debate . . . [i]t was the appeal and the success of this model that led all of the states to enact similar provisions against the financial support of churches” (Davis Reference Davis2000, 33).
He had a point. Davis's argument is persuasive in terms of the increasing acceptance in American society of a principle prohibiting systems of religious taxation. As he noted, this model of disestablishment grew in appeal and success over time; having started among some states, it developed at the federal level and increasingly attracted broader support in states with remaining religious establishment, leading to disestablishment there as well. It thus became settled fundamental law. As a result, not surprisingly, there is general agreement on the separation of church and state today when understood in these terms, to prohibit mandatory tithing through the tax system.Footnote 4
The difficulty, though, is when neo-separationist narratives sweep myriad other issues into the progressively evolving separationist discourse as if warranting inclusion in the same evolution of fundament law narrative when in fact the issues are often more policy prescription or preference than law. In this context, Davis discussed legislative and military chaplains, and presidential thanksgiving and prayer proclamations, indicating that the separation of church and state may require the abandonment of these practices too as part of the progressively evolving intentions of the founders (Davis Reference Davis2000, 73–93).Footnote 5 He expressed preference for the abandonment of these practices because there is no historical legal corpus prohibiting them for Davis to have analyzed, no corpus of settled law forbidding their continuation. Yet including these practices in the same evolutionary narrative that established no religious taxes for churches, without clarifying the very different legal statuses of the issues being considered, blurs the distinction between law and preference. Significantly, Davis addressed these long-standing practices because they relate to his broader notion of religion being essentially a private affair, the practices having violated that notion by injecting religion into the public sphere. Yet the notion of the essential privacy of religion is also more philosophy, theology, or political-cultural prescription than law. The notion has, no doubt, entered judicial discourse, with some justices expressing similar sentiments and others disagreeing,Footnote 6 but neither view has established legal doctrine defining the essential nature and dimensions of religion in ways comparable to established legal doctrine in religion cases defining the purpose of government legislation. Thus the Supreme Court has recently allowed the public display of the Ten Commandments on government property in one case (Van Orden v. Perry 2005) and prohibited it in another (McCreary County v. ACLU of Kentucky 2005), with the distinguishing factor explained by Justice Breyer being historical practice, which he upheld contra Davis's preference, not the essential nature of religion, which he did not define contra Davis's theology.Footnote 7
The extent to which evolving separationist narratives move from settled law such as not tithing through the tax system to prescriptions for overturning long-standing practices or defining the essential nature of religion, neither settled in law, is the extent to which those narratives become untenable, at least in making legal claims. In these instances, such narratives become less historical than aspirational, referencing evolving meanings or inchoate intent to suggest the future fulfillment of their preferences in a not yet fully manifest telos of separationism. In such contexts, the narratives become more political theory than legal history or analysis. What was significant about Davis's work was thus less what he proved, the uncontested notion of not tithing through the tax system or what he called no financial support of churches by civil authority, than his emphasis on inchoate original intent regarding constitutional models emulated, applied, and expanded over time. This was an important starting point for succeeding work.
Mark McGarvie's One Nation Under Law was, in several ways, different than Davis's Religion and the Continental Congress. McGarvie focused on the contract clause of the Constitution in Article 1, Section 10, though his work suggests that the separation of church of state emerging from the Supreme Court's interpretation of this clause was consistent with and should inform subsequent understanding of the establishment clause.Footnote 8 McGarvie also did not engage in explicit reflection on the history, status, or meaning of the concept of original intent. Yet the chronology of his subtitle, “America's Early National Struggles to Separate Church and State,” suggests an element of common cause with Davis. Like Davis, McGarvie too “looked beyond” through the 1830s: “Between the 1780s and 1840 common-law judges enunciated a legal doctrine recognizing individuals as free and independent actors, able to control their own destinies. The developing law of ‘contract,’ recognizing individuals as bound solely by their commitments as expressions of their own wills, embodied this legal doctrine and governed a myriad of personal and economic relationships” (McGarvie Reference McGarvie2004, 11).
Among other relationships, contract law guided affiliations between legislatures and other institutions such as churches responsible in early America for providing public governance and services. Such services in an era before the public school movement and the welfare state included education, poor relief, and record keeping. McGarvie found an important transition in analyzing this relationship between legislatures and churches. American governments went from viewing churches as governing institutions providing public services to a new separation in which churches were stripped of their public governing function. In its place, churches were allowed or directed to use the contract clause to incorporate themselves as corporate entities defined as private institutions, not public governing ones. This proliferation of private incorporation was a significant development away from the legal practices of traditional religious establishments when only the favored religion could receive corporate protection and own property. Key to McGarvie's argument was timing. The transition for churches from public service provider to private-corporation did not happen during the founding. Rather, it occurred during the first half of the 19th century and was enforced by the Marshall Court (1801–1835): “the constitutional separation of church and state derived less from the provisions addressing religion than from the broad liberal interpretation ultimately given the primary law by the Marshall Court in its exposition of the contract clause” (McGarvie Reference McGarvie2004, 48).
The implication of this argument, not always explicit, was that church and state maintained a tangle of relationships through the revolution, founding, and beyond, until the interpretations of the Marshall Court in the 19th century. These relationships thus presented continued difficulties if separationism was to be portrayed as fundamental law. McGarvie sought to address these difficulties by describing post-First Amendment relationships between church and state as temporary: “the practical needs of continuing to provide social services, particularly in education and care for the poor, required a temporary toleration of the old colonial model in which church and state worked together to serve the public good” (McGarvie Reference McGarvie2004, 48).
There are three issues here, in ascending importance. The first is semantic. The pattern of church-state relations for the provision of public services that is described as both “old” and “colonial” was to a large extent the working pattern of relations in the 1770s, 1780s, and 1790s, the founding period of American constitutionalism. McGarvie understandably avoided using the phrase “the old founding model” because it strikes such a discordant note. The phrase would have suggested a repudiation of the founding rather than a reconceptualization of the period's church-state policies as discarded in evolutionary progression. “Old colonial model” simply worked better. Either way, McGarvie was certainly on to something. The changes he described were real and important. Yet they are related to a second issue, which concerns the tendency in evolutionary narratives to privilege select historical developments over others resulting in a uni-linear construction more literary than historical. Because McGarvie's narrative through the 1830s was intended to establish fundamental law, it not only had to discard non-separationist policies that did in fact change, but also had to overlook non-separationist policies that remained or, even more troubling, that developed in the very same period. The narrative was intended to move in only one direction. As a result, it neglected intriguing contemporary developments that from a separationist perspective ran in a counter direction such as the reintroduction of religious language, references to God, and religious oaths in state constitutions throughout the antebellum period and beyond.Footnote 9
The third issue is suggestions of broader understandings of fundamental church-state law than the settled law that churches are not public governing institutions, suggestions again blurring the lines between law and policy preference. The early 19th-century change in the legal status of churches from public institutions with governing responsibilities — poor relief, recording keeping, and education — to private corporations occurred long before American governments became bureaucratic states. The privatizing of churches as corporations, in other words, occurred when American governments were primarily courts and political parties, not vast webs of bureaucratic agencies administering innumerable aspects of American civic life (Keller Reference Keller2009, 67–132; Lowi Reference Lowi1979). The antebellum use of the contract clause to incorporate as a private entity was standard for all types of organizations, not just churches. This was also the context in which Marshall developed the meaning of the commerce clause in Article 1, Section 8 to protect private property and privately incorporated entities from government intrusion and regulation. The two developments were obviously related, contract and commerce. Perhaps McGarvie simply meant to highlight this private incorporation process when he described Marshall Court law as separating the realms of public and private: “delineate public and private actions”; “the delineation of private and public activities”; “imposing a private-public distinction and designating separate forums”; “the legal separation of private and public actions was inextricably related to church-state separation” (McGarvie Reference McGarvie2004, 12, 13, 16, 18. See also 4, 48, 66, 114, 117, 175).
Yet when American governments later changed into nexuses of bureaucratic agencies, they dethroned Marshall's reading of the commerce clause as fundamental law, starting at the federal level around the Hepburn Act of 1906 and culminating in the famous, though misleading, “switch in time that saved nine” in 1937 (West Coast Hotel v Parrish 1937).Footnote 10 A similarly thorough dethroning of Marshall's reading of the contract clause seems unlikely. Yet as the bureaucratic age brought with it innumerable contracts between government agencies and private corporations for the fulfillment of social needs and services, from local garbage pickup to defense industries, some school districts and states began allowing the channeling of public resources to religiously affiliated schools to fulfill educational needs. Instructively, the Supreme Court has never ruled all such uses of public money as violating the establishment clause. Rather, it has upheld some policies, such as public money for secular textbooks (Board of Education v. Allen 1968; Meek v. Pittenger 1975), testing (Wolman v. Walter 1977), remedial services (Agostini v. Felton 1997), and computers and equipment in religious schools (Mitchell v. Helms 2000), while overturning others, such as public personnel (Grand Rapids School District v. Ball 1985; Meek v. Pittenger 1975) and public money for teachers' salaries in religious schools (Lemon v. Kurtzman 1971). More recently, the Court upheld a voucher program for the payment of tuition at religious schools, establishing constitutional permission for such properly framed programs (Zelman v. Simmons-Harris 2002). The schools remain privately incorporated entities, as McGarvie emphasized, but receive public money packaged as vouchers to fulfill public needs. Though McGarvie does not address the issue, proponents of evolutionary fundamental law narratives are faced with a difficult choice here. The channeling of public money to religious schools could be deemed consistent with settled contract or establishment clause precedent demarcating public and private realms, even as voucher policy remains contested in American politics. Or such channeling of resources is inconsistent with settled contract or establishment clause precedent in which case modern municipalities and states, as well as state and federal supreme courts have raised serious questions about the meaning of fundamental law in this area.Footnote 11 Either way, evolution of fundamental law narratives that describe the legal separation of private and public activities when analyzing relations between church and state can too easily suggest broader meanings than the agreed upon fact that churches are not public governing institutions.
McGarvie hinted at such broader meanings. A simple reading of his identification of the public sphere with government and the private with religion yields the agreed-upon institutional separation of church and state. Yet his delineation of “actions” and “activities” indicated a broader separationism reminiscent of Davis's vision of restricting religion to the private sphere. “Religion,” McGarvie explained in clarifying the development of church-state separation, “was appreciated as serving individual and private needs and longings, not as addressing communal and public concerns” (McGarvie Reference McGarvie2004, 66). The appearance of this claim in McGarvie's narrative was dramatic because it was so substantively different from his well founded conclusion that churches are not public governing institutions. To say that churches are privately incorporated entities, inhabiting a non-governing sphere of civil society, is far from synonymous, indeed dramatically different, than saying churches or religion have nothing to say about community or public concerns. Nevertheless, McGarvie peppered his narrative with these types of claims, suggesting a much broader understanding of church-state law than the settled law of private incorporation. Religious citizens, he maintained, could disagree with the handling of public concerns, with freedom to “offer dissent from government policies.” Indeed, “churches retained the right to express dissenting opinions.” Yet as religious citizens and churches could function as dissenters in society, their function was “not as contributors to public policy” (McGarvie Reference McGarvie2004, 49, 20, 129. See also 19).Footnote 12
The propriety of religious citizens and churches engaging in politics and influencing public policy is an intensely contested issue today, and has been since the Republic's inception, with contending literatures devoted respectively to crafting and rejecting specific rules for public discourse. Much of this debate is related to John Rawls's famous attempts to establish such rules, which myriad others joining in support and opposition (Audi Reference Audi and Feldman2000; Reference Audi and Weithman1997; Reference Audi1991; Reference Audi1989; Coleman Reference Coleman and Weithman1997; Hollenbach Reference Hollenbach and Weithman1997; Rawls Reference Rawls1993; Reference Rawls1985; Weithman Reference Weithman1991; Wolterstorff Reference Wolterstorff and Weithman1997). Most importantly, except for the settled law that legislation much serve a secular purpose, the discussion about the propriety of religious citizens and churches engaging in politics is one of political theory more so than law. McGarvie's discussion of separationism as entailing the development of fundamental law is thus tenable in the specific sense of government assuming responsibilities for the public services of poor relief and record keeping under the Marshall Court. Yet a discussion of separationism that invokes the evolution of fundamental law becomes untenable to the extent that it suggests legal or cultural clarity on the status of religion as essentially a private endeavor or restricted to a private sphere, with substantive barriers restricting the participation of religious citizens and churches in the public-political arena. These are intensely debated issues today and, more to the point, they have never formed fundamental law in American history. Neo-separationist narratives are least persuasive in these contexts, reflecting more an attempt to construct a fundamental law narrative that to describe an historically existing one.
PERSISTENT CHALLENGES AND NEW CONVERSATIONS
Attempts to write about the separation of church and state in American history continue to face persistent 19th-century challenges. Steven K. Green's (2010) The Second Disestablishment attempts to address those challenges and represents the maturing of neo-separationist endeavors over the last decade. David Sehat's (Reference Sehat2011) The Myth of American Religious Freedom represents something else, an attempt to revise the conversation in the writing of establishment clause history. Both warrant careful consideration, the first as the most elaborate neo-separationist work to date and the second as the most explicit acknowledgement of the problems inherent in the separationist endeavor.
In The Second Disestablishment, Green addresses fundamental law broadly and specifically. Broadly, he persuasively emphasizes “the secular nature of the Constitution and the new [national] government's nonreliance on religious principles” at the founding. He thus rejects Christian-nation readings of the Constitution and emphasizes the American government's basis in consent and contract as expressions of human will, not divine will or higher law. Specifically, Green examines the establishment clause as fundamental law and, in this context, indicates the evolutionary nature of his thinking. He significantly tempers the classic original-meaning pursuit about how the establishment clause was understood in late eighteenth century America, with tepid conclusions (Green Reference Green2010, 61, 66).Footnote 13 This classical pursuit is tacitly redefined in his early chapters by being conceptualized as a step in a distinctly provisional founding that unfolds in historical processes yet to come: the founders “saw history and the political theories they were espousing as a process”; their “conception of church-state relations was heterodox, dynamic, and incomplete — and purposefully so”; “To the founders, the separation of church and state was an unfolding idea” (Green Reference Green2010, 8). More elaborately, Green explains, at the
founding political disestablishment coexisted — at least initially — with a culture that still prioritized religion and maintained religiously based laws and social conventions and a legal system that enforced those conventions based on religious grounds. Thus, the first period of disestablishment was in fact that: taking the first steps. The founding period established the framework of church-state separation and set in motion the forces that would eventually lead to legal and institutional disestablishment (Green Reference Green2010, 11–12).
Although Green is unclear the extent to which his discussion entails original meaning, the founding in his narrative, and its place in church-state understandings, is no longer simply what the classical separationists understood it to be, the debates, writings, and ratifications of American constitutional development in the late eighteenth century. That classical founding is but a first step that set in motion forces that eventually developed into something else.
Green explains why this evolutionary perspective is necessary in shifting from the classical separationist founding as establishing fundamental law toward a neo-separationist founding as putting law in motion. The shift is needed because of religion's prominence in the public, political, and cultural life of the founding. As Green describes in the above quote, the ending of religious establishments at the founding — “political disestablishment” — coexisted with religiously based laws and social conventions backed by legal enforcement, themselves “based on religious grounds.” He further describes at the founding how “all states retained or reenacted laws regulating conduct according to a Christian standard, prohibiting Sabbath desecration, blasphemy, profane swearing, fornication, and bastardy” (Green Reference Green2010, 50–51).Footnote 14 His narrative thus develops from this point, charting “the political, legal, and institutional transformations of the principle of separation of church and state, transformations that served as a bridge from the founding period to the modern regime represented by Everson and its progeny” (Green Reference Green2010, 10). The Supreme Court's Everson v. Board of Education (1947) decision and its progeny codified the separationist interpretation of the establishment clause by incorporating that clause into the Fourteenth Amendment and applying it to the states. Green's historical conceptualization notably identifies “transformations,” not settled law, as that which bridged the founding and Everson.
Much of Green's evolution of fundamental law analysis bridging the founding to this modern regime is tenable and persuasive. He examines 19th-century practices and laws continued from the founding such as prosecutions for blasphemy and Sabbath desecration, the necessity of believing in a future life for oath taking and court appearances, and the incorporation of Christianity into the common law. American history from the late-19th century until today has included the gradual rejection of these 19th century laws and practices, with legal institutions having settled their constitutional prohibition (Green Reference Green2010, 149–203, 205–247). Those laws and practices are thus not in dispute today as viable forms of public policy. Writing about them in an evolution of fundamental law narrative, partly tracking and partly anticipating the known solidification of the rejection to come, is thus tenable.
However, important parts of Green's evolutionary analysis concern other church-state matters, particularly the channeling of public resources to religiously affiliated schools and Bible reading in public school. Consider Bible reading. Green tracks 19th-century changes in the rationale of this practice from religious (instilling belief) to secular (instilling virtue). For both, the practice was purportedly “nonsectarian” in simply reading Christian Writ without reference to denominational specific doctrine. Green concludes: “the School question with its debate over nonsectarianism, helped to facilitate the secularization of American education and, in turn, further accelerated the disestablishment of the culture and law.” Evidence for this secularization includes four late-century state supreme-court rulings “striking down Bible reading.” Yet Green also notes other late-century cases which “upheld religious exercises” and explains that many late-century “courts rejected challenges to school religious exercises.” Moreover, “several states would enact laws requiring reading from the Bible” in school after 1900. Green, though, focuses on “trends,” the acceleration of disestablishment beyond his narrative, not legal clarity within it. He identifies one trend as “the underlying principles of universality and noncoercion,” even among Bible reading supporters, suggesting this principle ultimately undermined the practice beyond the period of his analysis. He can thus suggest that Bible reading was “in decline” in the late 19th century, meaning from near ubiquity to being challenged and in some places overturned, in others upheld, and in others still reconfirmed or newly required. In highlighting this diversity of fin de siècle law on Bible reading, Green is essentially tracking the practice's declining perceived legitimacy and stability as law, suggesting, though not using this language, that the permissibility of Bible reading was no longer settled law. This diversity, however, is not really Green's point. He describes but leaves it by jumping from the late 19th-century challenges to Bible reading to the “Court's adoption of the Jeffersonian/Madisonian model of church-state separation,” meaning the Court's invalidation of Bible reading in public school in the 1960s (Green Reference Green2010, 325, 321, 311, 313, 324, 390).
There are two issues here. The first is Green's treatment and use of the “founders” and “founding” beginning with his tempered classical original-meaning pursuit of the establishment clause and continuing through his references to the Court of the 1960s. For context, consider again Drakeman's description of the pursuit of original establishment-clause meaning at the founding. That pursuit concerns “how the establishment clause may have been understood — by any and all — around the time that it was adopted and ratified”; “framers' and ratifiers' statements or acts that might shed light either on their intentions or on what they saw as the clause's purpose or expected meaning, as well as . . . how other Americans at the time might have understood the text” (Drakeman Reference Drakeman2010, 19). Such inquiry involves the writings, ideas, and actions of tens if not hundreds of founding Americans. In contrast, references to and uses of the “founders” and “founding” in Green's narrative often entail the ideas of primarily two individuals, Jefferson and Madison. The evolution of fundamental law narrative that results is largely a story of those who adopt a “Jeffersonian/Madisonian model of church-state separation.” In fairness, Green's focus on Jefferson and Madison replicates the interpretive methods of important 20th-century jurists who established fundamental law in this area. As he indicates, the Court did invalidate Bible reading in public school largely based upon some jurists' use of the writings of Jefferson and Madison beginning with the non-Bible reading case of Everson and then extending to Everson's Bible-reading progeny (Abington School District v. Schempp 1963; Chamberlain v. Public Instruction Board 1964). Yet Green's purpose is not simply to reference a few 20th-century Court decisions, but to portray those decisions as embodying the evolutionary processes of history set in motion by the founding. As such, persuasion in this context requires effectively responding to scholarship that suggests important aspects of Everson and its progeny reflect not the evolutionary unfolding of founding principles, but highly selective and subjective uses of history, including historical omissions in the construction of the “Jeffersonian/Madisonian model” itself (Dreisbach Reference Dreisbach, Sheldon and Dreisbach2000; Reference Dreisbach1997; Reference Dreisbach1991; Reference Dreisbach1990; Muñoz Reference Muñoz2009). The historical existence of the model and the integrity of judicial methods in applying it, in other words, are subjects of intense historical and legal dispute. That dispute's increase over time (Dreisbach Reference Dreisbach2002; Hamburger Reference Hamburger2002; Smith Reference Smith1995) informed the context in which evolutionary narratives first began to appear, as Davis acknowledged in lamenting the “regrettably inadequate” nature of founding records (Davis Reference Davis2000, 14). The dispute thus requires a reasoned defense of the model and method in light of contending perspectives rather than simply repeating the invocation of them in evolutionary terms. Those terms are simply no substitute for reasoned explication.
The second issue is how Green's logic in presenting the Court's invalidating of Bible reading in public school as the culmination of fundamental law evolution raises substantive difficulties when he addresses the channeling of public money to religiously affiliated schools. Green's purpose in addressing religious school funding is to indicate the development of 19th-century law prohibiting the practice while acquitting the prohibition from the charge made by Justice Clarence Thomas (Mitchell v. Helms 2000, 825–830) and scholar Philip Hamburger (Reference Hamburger2002, 191–251) among others of anti-Catholic animus (Green Reference Green2010, 251–311). Significantly, the public money issue mirrors the Bible reading issue, reversing the trajectory of the evolutionary narrative. Unlike Bible reading, the law developed more clearly to prohibit public funds to religious school in the 19th century than it has in the late 20th and early 21st centuries. Settled law prohibiting government funding of religion has shown considerable fluidity in this context with the aforementioned cases allowing public money for books and equipment in religious schools. And the clearest culmination of the evolutionary process is the Court's 2002 opinion validating a Cleveland voucher program allowing parents to use public money for tuition payments at religious schools (Zelman v. Simmons-Harris 2002). Such voucher programs admittedly differ from 19th-century public funding issues because public money in the latter was usually prohibited from going directly from state coffers to schools whereas money in voucher programs passes through the intermediary hands of private citizens, namely parents, who, rather than the state, direct its use. The distinction is important. The question is whether Green views it in Second Disestablishment as determining constitutionality.
This question is pertinent because of Green's notable discretion in employing the narrative strategies of evolutionary processes. He consciously transcends the 19th century parameters of his analysis to tie his discussion of the diversity of fin de siècle law on Bible reading to late 20th-century Supreme Court decisions prohibiting the practice in public schools. This trajectory is intended to manifest the progressively evolving church-state principles set in motion at the founding. Yet the narrative considerably flattens when Green exhibits no obvious concern and makes no effort to tie his discussion of public money to religious schools to similar modern Supreme Court decisions. The bridges he makes between the 19th century and the modern Court, so central to his notion of transformations and progressive intentions, are conspicuously absent in the religious school funding context. He offers no reflections on the subject in the modern context and in contrast to Bible reading, the issue is completely missing from his conclusion.
Green's neglect in Second Disestablishment of relating his historical analysis of the religious school funding issue to modern legal decisions is all the more glaring given that he addresses the Zelman decision in works of 2004 and 2012, both before and after Second Disestablishment. As part of a 2004 symposium in the University of North Carolina's First Amendment Law Review, Green offered “‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle.” Therein, he clearly expressed disagreement with Zelman, characterizing it as a “runaway train” that reverses the proper direction of historical progression, a “retreat.” He dismissed the distinction between direct government funding of religion and the indirect channeling of public money by private citizens as merely symbolic and thus advocated a reversal of the retreat to “reaffirm” no funding (Green Reference Green2004, 108, 112, 152).
Though Green pays significantly less attention to Zelman in his 2012 work, The Bible, the School, and the Constitution, with the decision appearing in only three footnotes (Green Reference Green2012, 266, 284, 289), his in-text allusions to Zelman are nonetheless notable. His focus in 2012, as in Second Disestablishment, is on the 19th century and, as he partly does in Second Disestablishment, he relates his historical analysis to modern Court decisions. Yet this time he includes the school funding issue in drawing his historical-modern connections. In the process, though, he drops the concepts and terms of evolutionary processes so central to those connections in Second Disestablishment. Zelman's school choice principle thus appears in The Bible, the School, and the Constitution not as embodying the progressive evolution of fundamental law, but as something much more mundane, “a legal concept the Supreme Court would struggle with,” an issue that remains “unresolved to this day,” part of an “ongoing debate” (Green Reference Green2012, 65, 226, 257).
Green avoids evolutionary thought processes when alluding to Zelman in The Bible, the School, and the Constitution for the same reason he avoids relating the school funding issue to Zelman and other modern Court decisions in Second Disestablishment. The evolutionary thought processes of separationists are intended to move in but one direction, notwithstanding the fluidity inherent in actual evolution, and when historical reality fails to conform to academic uni-linearity the thought processes themselves begin to break down. This faltering of narrative strategies reflects the fact that there are no agreed upon criteria for determining when and why the Supreme Court embodies the evolution of fundamental law, as Green claims in Bible reading, and when it does not, as Green thinks regarding vouchers. Such criteria, if proposed, would have to avoid mere tautology. That is, criteria would have to be independent of evolutionary thought processes that present church-state law as progressively unfolding from incipient founding beginnings. Otherwise, the criteria for determining when the Court properly embodies constitutional evolution and when it improperly “retreats” would simply be the thought processes of evolutionary separationits themselves, which are parties to the dispute, not its resolution.
David Sehat (Reference Sehat2011) realizes such persistent problems in the separationist endeavor and thus suggests the need for a new conversation in The Myth of American Religious Freedom. His approach is distinct because he advocates separationism while openly acknowledging what he calls “the secular liberal myth,” the claim that the United States was not significantly a Christian society at its founding. “In many ways,” he notes, the United States “was a Christian nation in that Christians had significant control over law and governance and used it to enforce morality.” Yet Sehat simultaneously undercuts religious conservatives whose myth is the belief that the Christian elements in American history worked through consent rather than coercion. “[I]f it was a Christian nation, it was not so by consent,” he insists, but by “the coercion of law.” Sehat thus intends to discard both interpretations of the nation's past, “to dispense with the historical myths by which each side supports their position and in so doing make way for a new and more meaningful conversation on the public role of religion in the present” (Sehat Reference Sehat2011, 8).
Sehat aims to facilitate this new conversation on church and state by examining the prevalence of religious coercion in American history since the founding, the legal enforcement of religious norms that composed the nation's long-standing “moral establishment.” Exposing this establishment is necessary, he claims, because previous “writers have missed its existence” (Sehat Reference Sehat2011, 9; Compare Monsma and Soper Reference Monsma and Soper1998; Feldman Reference Feldman1997). Examples of such coercion thus permeate his narrative. They include 19th-century laws against blasphemy and Sabbath desecration, with attendant prosecutions and convictions. They also include less obviously religious practices, such as coverture imposing legal restrictions on married women, which Sehat ties to the antebellum conflation of Christianity and the common law (Sehat Reference Sehat2011, 60–68, 98–99, 170–178). With these and similar issues, Sehat is on solid ground.
His discussion of the late-19th century is more revealing as he considers corporate capitalism and the plight of ex-slaves following emancipation, contexts in which his thought on religious freedom assumes greater clarity. The discussion of corporate capitalism focuses on the late-century legal protections afforded private property, including corporations, against government intrusion or regulation. Such protection is related to Marshall-Court commerce-clause precedent, but more specifically concerns the Fourteenth Amendment's due process clause protecting against deprivations of property without due process of law. Sehat's concern in this context is religion's influence on conceptions of property among key Supreme Court Justices. He singles out Justices Stephen J. Field and David Brewer, and summarizes their thought with the maxim: “God has anointed property.” His logic is that the justices' identification of corporations as individuals with Fourteenth Amendment property protections against government reflected their religiously influenced conceptions of property. The identification, drawing religion into law, thus violated religious freedom, unjustly “privileging the rights of corporations over those of unionized workers” (Sehat Reference Sehat2011, 191–192). From this late-19th century high-protection conception of property, the narrative moves toward the regulatory regime of the New Deal and the aforementioned “switch in time.” Sehat's telling of these regulatory developments implies approbation, less because of increased government regulation per se than a purported decrease of religion's influence on politics and public policy, in conceptions of property and attendant constitutional interpretations.
The same concern with religion's public influence infuses the discussion of ex-slaves after emancipation. Sehat's focus here is less on sharecropping and segregation than on how proponents of late-century “bourgeois Christianity” sought to “civilize” ex-slaves through a process of morally normed socialization that entailed many religiously influenced institutions and values. These institutions included the American Missionary Society and an array of “other freedmen's aid societies sponsored by Christian churches to work in close cooperation with the U.S. government to bring about a new moral establishment in the South.” The “civilization” process thus continued “the long-standing belief in the role of Christian institutions in taming the individual” (Sehat Reference Sehat2011, 112–113).
The development of corporate capitalism and the transition to a post-slave society occurred simultaneously. In each, Sehat presents religion as playing important public roles in influencing conceptions of property as well as understandings of the human person and the process of socialization. The narrative is clearly critical of these roles as a violation of religious freedom and suggests, instead, conceptions of property and the human person independent of religiously informed thought and values. The narrative subsequently continues these themes as it proceeds through succeeding generations toward the post-World War II decades which Sehat calls the “Liberal Moment.” This moment was when the Supreme Court increasingly conceived of the Bill of Rights and the Fourteenth Amendment in terms of the individual autonomy of post-War liberal philosophy. Sehat thus describes how “the emergent liberal jurisprudence” after the War gradually fashioned the autonomous individual, “abstracted from the myriad social forms in which he or she was embedded.” The analysis includes cases directly linked to religion and well known to those conversant in modern church-state debates, including Bible reading and prayer in school, released time programs, and public funding going to religious schools. Simultaneously, the analysis expands along with the Court's thinking to move beyond cases overtly religious to address those in which religiously informed thought may have played a role in shaping politics and public policy: “By 1965 the Court had finally expanded religious freedom to include political, sociological, and philosophical reasoning,” a point followed by the penumbras of Griswold v. Connecticut (1965) outlawing limitations on contraceptives (Sehat Reference Sehat2011, 235, 248, 251).
The argument is not lacking in persuasive logic and examples. In important ways, moreover, it is distinct from neo-separationism, as the expressed desire for a new conversation suggested. Unlike neo-separationists who abandoned the classical understanding of original intent only to maintain a semblance of affiliation with the founding in evolution of fundamental law narratives, Sehat acknowledges that separationism as a policy was a myth until the post-World War II decades. The acknowledgement seems liberating for the author, allowing him to forgo an evolutionary narrative with all the persistent problems inherent therein. Sehat is thus free to present the policy of separationism as emerging from the Court's liberal moment, not the founding, and, moreover, as a remedy for a history of legal coercion dating from the founding. Church-state separation did not exist before, but needs to now, is the basic logic: “To move forward we must first confront and assume the burdens of history” and then “liberate the individual from religious oppression that used the apparatus of the state” (Sehat Reference Sehat2011, 290–291. Compare Davis Reference Davis2000, 229).
The source of that religious oppression from which the individual requires liberation is the point of importance. Sehat's narrative identifies that source as the influence of religion and religiously informed thought and values on the public-political life of the nation. This influence produced conceptions of the human person other than the autonomous individual of modern liberal theory, other than the individual abstracted from the social forms in which he or she is embedded. Those conceptions, in turn, informed institutions, often mediating between the individual and the state, and affected the making of public policy (Sehat Reference Sehat2011, 57, 84, 114, 156, 188, 248). Together, the conceptions, institutions, and policies represent what Sehat calls the burdens of history and they are what the individual requires freedom from. As stated, the argument is not without its persuasive logic. It is also not unfamiliar. It closely resembles John Rawls's philosophy regarding religion and the autonomy of the individual. Sehat indicates that hitherto religion has been too influential on the public life, culture, institutions, and policies of the nation, which now requires separationism as remedy; Rawls argued that religion should not play a prominent political role, but should subside in “background culture” distanced from “the publicly political” arena of public discourse and policy. Rawls too drew on history to buttress his prescriptions, referencing the religious wars of the early modern era as reason for bracketing religion (Rawls Reference Rawls1993; Reference Rawls1985).
The question here is not whether Sehat's prescriptions are correct, but the extent to which they represent a changed or new conversation. In this sense, his prescriptions resemble those of neo-separationists as well as other commentators and scholars. Davis suggested restricting religion to the private sphere. McGarvie similarly advocated substantially limiting religion's influence on politics and the informing of public policy. In recent decades, Robert Audi, Stephen Feldman, and others have offered similar thoughts (Audi Reference Audi and Feldman2000; Reference Audi and Weithman1997; Reference Audi1991; Reference Audi1989; Feldman Reference Feldman1997). Individual autonomy as a prerequisite for religious freedom also informs the thinking of such scholars and was prominent in McGarvie's analysis (2004, 7, 9, 10–12, 15, 21, 23, 35, 38, 46–47, 67, 71, 75, 79). Sehat's prescriptions add to this corpus, offering a substantial historical analysis across two centuries highlighting the crucial theoretical link in separationist thinking, neo and otherwise, between the privatizing of religion presented as establishment clause mandate and the cultural libertarianism of individual autonomy. The one, it is repeatedly suggested, requires the other. The conversation, with distinct historical emphases and important acknowledgments, thus continues along familiar separationist lines. The evolution is simply from the Supreme Court's post-World War II “liberal moment” rather than the constitutionalism of the American founding.
CONCLUDING THOUGHTS
The substantive commitment to religion's essential privacy and the conception of the autonomous individual are more prescription, political philosophy, or legal theory than actual fundamental law. Yet, importantly, elements of these commitments, particularly individual autonomy, have entered legal discourse and, as Sehat suggests, even the text of select judicial decisions. It is in this context of a fluid legal discourse that the aspirational nature of separationist histories is most apparent and the line between historical analyses of law and legal policy prescriptions most blurred. The fluidity of constitutional law, its susceptibility not only to social and political pressure but also to the discursive pressure of political and legal theory, is what separationist narratives seek to shape and direct, toward restricting the influence of religiously informed thoughts and values on public culture and political discourse so as to promote a libertarian public culture of individual autonomy or self-directing moral agency.
A useful perspective from which to reflect upon the writing of such aspirational history is the changing historical status of individual autonomy as a public philosophy, from a marginal and minority perspective throughout most of the nation's history to a prominent and influential philosophy in the post-World War II period. Advocacies for greater degrees of autonomy and agency certainly existed in earlier periods of American history as the free-thought tradition indicates (Horowitz Reference Horowitz2002; Jacoby Reference Jacoby2004). Yet those advocacies were in dissent from more influential public philosophies. The issue through much of American history was not whether individual rights were an integral part of the American social order, as founding documents clearly indicated, but the conception and protection of such rights in tandem with understandings of human development and flourishing. The spectrum included myriad shades of opinion, with most viewing the formation of personhood as requiring some form of cultural and institutional processes of socialization that cultivated certain habits, virtues, and norms in the citizenry. Others preferred various degrees of self-determining moral agency and presented this minority perspective of the individual abstracted from these very cultural processes in the language of rights.
Significantly, such differences in public philosophies cannot be reduced to a conflict between religion and secular thought, as separationist narratives sometimes suggest. Religion undoubtedly played substantive roles in shaping public understandings of rights and human development. Yet so too did several streams of Enlightenment thought that informed the intellectual and cultural life of the American founding, including John Locke's thought, which were consistent with, indeed, advocated the socialization of the rights bearing individual in ways that later philosophers of autonomous agency would find too restrictive (Grenda Reference Grenda2006). These Enlightenment streams differ significantly from post World War II liberal philosophy in that they did not posit the autonomy of subjective rights as ends in themselves without reference to an objective or natural structure of moral ends.Footnote 15 The law professor Stephen Carter put it nicely:
Much of liberal theory before the middle of the 20th century focused on the question that has driven Western religions from their founding — What is best for man? — and thus was about ends. . . . The project of the Enlightenment . . . did not hold that the basic question had no proper answer, or that all answers were equally good; the Enlightenment project held, rather, that human reason was sufficient to discover what the answer was. . . (Carter Reference Carter, McConnell, Cochran and Carmella2001, 45).Footnote 16
The prescriptions of separationists regarding the proper role of religion and the proper conceptions of the human person are certainly worthy of careful consideration and reflection. They have become prominent in the post-World War II period as never before in American history, receiving significant support from substantial segments of the American polity, including lawyers, jurists, and professors, as well as from the general tenor of structuralist and post-structuralist understandings of cultural and socialization processes. In considering these separationist prescriptions, however, it is worth recalling the widespread agreement over what Davis proved as fundamental law, no tithing through the tax system, what McGarvie proved, churches are not public governing institutions, and much of what Green proves, no blasphemy or Sabbath desecration prosecutions. (Bible reading remains more contentious.) Clarity on the settled nature of these examples of fundamental law highlights that separationist narratives are not just about historical descriptions and analyses of constitutional doctrine, not just about proving what jurists and citizens already overwhelmingly agree on. Rather, in the process of reiterating such agreement, such narratives are also parties in the contest over public philosophies today regarding the role of religion and the conception of the human person in the attempt to get courts and the Court to enunciate one philosophy over others as mandated by the American constitutional system. The narratives, no doubt, include important historical analysis of American legal development. Yet they also include legal and cultural aspirations regarding conceptions of religion and the human person in their descriptions of establishment clause mandate. Unfortunately, they not only insufficiently distinguish between these two dimensions, the historical and the aspirational, but also often interweave the two so as to present the aspirational as the inevitable product of the historical. It is in such instances that they are most disappointing, lobbying as much if not more than illuminating.
