This might be the best guide available to the present debates over the Establishment Clause of the First Amendment. The editors and several of the contributors take issue with Philip Hamburger's influential Separation of Church and State (Cambridge, Ma 2004), which argued that the concept is not in the language of the First Amendment, was originated by Republicans defending Thomas Jefferson against Federalist charges that he was an ‘infidel’ after the election of 1800, and gained traction only in the 1840s when nativists used it to restrict the influence of Roman Catholic clergy in politics. The net effect of Hamburger's argument has been to undermine support for secularist interpretations of the Establishment Clause that would, for example, restrict religious speech and argument to what contributor Mark McGarvie calls ‘private spheres’ (p. 77). Hamburger's book has also helped some to argue that the Founders had no problem with what has been called non-preferentialism – the view that government may support religion-in-general as long as it does not prefer any one in particular.

A number of contributors make arguments that would appear to challenge Hamburger's thesis. David Little maintains that Roger Williams laid the foundation for the Establishment Clause by insisting that government has no jurisdiction over the conscience of the individual. Little asserts that James Madison, the primary author of the First Amendment, followed Williams's lead. Carl Esbeck argues that debates in the First Federal Congress indicate that the Founders rejected non-preferentialism as well as specific federalism, the view that the First Amendment was intended to allow states to have their own establishments. Ralph Ketcham contends that Jefferson and Madison believed that all establishments, whether federal or state, violate religious freedom. Stephen Green argues that the concept of ‘separation of church and state’ was more common in the nineteenth century than Hamburger credits. T. Jeremy Gunn claims that Hamburger is wrong to suggest that Justice Hugo Black's Everson decision (1947) first established ‘separation of church and state’ as the key to unlock the Establishment Clause, for it was already used in the Reynolds case of 1878, seven years before Black was born. Gunn also objects to Hamburger's focus on Black's membership of the notoriously anti-Catholic KKK as a way to suggest that separation-as-dominant-metaphor was inspired by religious prejudice. Gunn points out that Catholic justice Frank Murphy was on the same Court and signed on to Black's opinion.

Yet those who challenge Hamburger and his approach are not always convincing. Thomas Berg argues that Everson was indeed influenced by distrust of the Catholic Church, and points to statements by Black's son that his father shared only one view with the KKK, its suspicion of the Catholic Church. Gunn quotes the estimable Witte saying that separation of Church and State is rooted in the Apostle Paul's ‘wall of separation’ (Ephesians ii.14) denoting ‘separation between Christians and non-Christians’. But there is no hint in either this volume's text or footnotes that Paul's wall was in fact between Jew and Gentile, not Church and State. McGarvie's chapter is full of similar anachronisms, such as the claims that Revolutionary Americans came to see religion as private not public, and it was a ‘difficulty’ for them to reconcile political liberty with their desire to preserve the Christian heritage. These are false dichotomies for this era when, as contributor Daniel Dreisbach proffers, many who opposed religious establishments nevertheless were convinced that religion provided indispensable support for civic virtue and political prosperity. McGarvie's presentism causes him to stumble egregiously; he claims that Georgia's constitution (1777) was a shift to secular humanism because it changed parish names such as St Paul to monikers such as Richmond. Apparently he missed the state motto prescribed by the constitution: ‘Deus nobis haec otia fecit (God has given us these days of leisure)’. Gunn argues that Hamburger's theory that ‘separation of church and state’ was a term developed by nineteenth-century Republican bigots against Catholics is proven wrong in the presidential election of 1876 when Catholics favoured the Democrats because even the Democrats praised the ‘entire separation of church and state’. What Gunn does not mention is that in August 1876 Democrats in the House passed the Republican-initiated Blaine amendment banning public aid to Catholic schools but added a clause that prohibited Congress from enacting legislation to enforce it. Catholics could conclude that Democrats were less anti-Catholic than Republicans – as Hamburger suggested.

The upshot of this impressive volume is well-put by Martin Marty: ‘Efforts to support the concept of Christian America through legal means are doomed to fail, just as efforts to locate the concept of secular America in the founding legal documents has [sic] little historical warrant’ (p. 366). Such efforts are doomed to fail because, according to Dreisbach, the Founders may have been deliberately vague about what ‘establishment’ meant, since there was no clear consensus among them. They certainly meant that the national government was prevented from establishing a national religion, and they did not limit the religion clauses to mere liberty of conscience (Esbeck). But beyond that there were many differences among them over what ‘establishment’ could mean. As Michael McConnell points out, establishment in a variety of forms had considerable support at the founding: eleven of the thirteen colonies – including counties in metropolitan New York – had established Churches of some sort on the eve of the Revolution. Even after Churches lost financial support in Virginia, Maryland and South Carolina, state legislatures exercised authority over them, including articles of faith. Even after Independence every state but Virginia restricted on religious grounds the right to hold public office. Pennsylvania, which rejected establishment, nevertheless insisted that magistrates believe in the divine inspiration of both Testaments. Derek Davis reports that the Continental Congress (1774–89) was marked by ‘fervent religiosity’: it designated fast and thanksgiving days, and after the end of the war continued to employ chaplains to open each day in prayer. American presidents were also surprisingly religious in public. Madison proclaimed public days of thanksgiving, said the state should encourage religions that ‘ennoble’ and ‘expand’ the mind, and opposed the ban on ministers in office. Even Jefferson favoured fasts in Virginia's House of Burgesses because he said that they provided the ‘shock of electricity’ that has a positive effect on people. After Andrew Jackson, according to Davis, all presidents issued prayer proclamations. Not until Reconstruction did disestablishment become an essential part of the liberal conception of rights (McConnell).

All in all, these essays suggest that the Establishment Clause points not to a secular state but to a ‘neutral state’ that is uncommitted (Davis). As Philip Schaff wrote, the constitution ‘is neither hostile nor friendly to any religion; it is simply silent on the subject, as lying beyond the jurisdiction of the general government’.