The Second Disestablishment: Church and State in Nineteenth-Century America

The Second Disestablishment

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The Second Disestablishment Church and State in Nineteenth-Century America

STEVEN K. GREEN

2010

Oxford University Press Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam

Copyright © 2010 Steven K. Green Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Green, Steven K. (Steven Keith), 1955– The second disestablishment : church and state in nineteenth-century America / Steven K. Green. p. cm. ISBN 978–0–19–539967–7 1. Church and state—United States—History—19th century. 2. United States—Church history—19th century. I. Title. BR516.G65 2010 322ʹ.1097309034—dc22 2009027610

9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper

Acknowledgments

This book arose out of my own quest for historical understanding. As an undergraduate student, I was struck by a tension in the various accounts of religious disestablishment in America. On one side stood the account of a strong respect for religious equality and separation of church and state, as represented by the decisions of the U.S. Supreme Court between 1947 and 1985 (give or take a few years). This interpretation drew inspiration and legitimacy from the immortal works of Thomas Jefferson and James Madison during the founding period. This account, however, seemed to be contradicted by the perspectives and practices of the era between the founding and incorporation. While the Court’s separationist interpretation of the religion clauses could have been wrong, I suspected that the explanation might lay with our understandings of nineteenth-century church-state history. This interest remained with me through law school and beyond, leading me to leave legal practice for graduate school, then to law teaching, to a church-state legal practice, and finally to teaching again. Through that more than twenty-year journey, this book has been a constant companion, evolving as a result of (and hopefully benefiting from) my various experiences. Over such a long period, I have accumulated many debts. My initial gratitude is to undergraduate professors Ronald Flowers and Donald Jackson, who implanted an interest in American religious history and constitutional law, respectively. In graduate school, I benefited from the guidance

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of my advisors and committee: Donald Mathews, John Semonche, William Leuchtenburg, Grant Wacker, and John Orth. Professorial inspiration came also from Peter Filene, William Van Alstyne, John Hope Franklin, Walter Dellinger, and George Marsden. I am indebted to the administration of Vermont Law School which allowed me to teach my first church-state class, to the board and staff of Americans United, and to a great mentor and friend, Robert Alley of the University of Richmond. Most recently, I have benefited from the encouragement and suggestions of my colleagues at Willamette University: David Gutterman, Seth Cotlar, Richard Ellis, and Dean Symeon Symeonides. Finally, this work benefited from the suggestions of Ron Flowers, Derek Davis, and the anonymous reviewers at Oxford University Press. I would also like to thank my assistant, Reyna Meyers, and the staffs of the following libraries: Willamette University (Galin Brown in particular), the University of North Carolina, Duke University, Dartmouth University, Harvard Law and Divinity schools, Yale University, the Library of Congress, Vermont Law School, Georgetown Law School, and the University of Maryland. Portions of this book appeared in earlier forms in the following journals: American Journal of Legal History (36:38–69); Albany Law Review (63:427–476); First Amendment Law Review (2:107–152); Creighton Law Review (38:761–797); and Brigham Young Law Review (2008:295–333). Any reprinting here is with permission. Finally, I could not have completed this work without the encouragement and hospitality of our friends Scott and Andrea Mouw; the love and encouragement of my parents, Pauline and Leslie Green; and the enduring love and encouragement of my wife, Cindy Pentony. Cindy has exhibited great patience and support throughout this twenty-year enterprise. This book is dedicated to her, with all my love.

Contents

Introduction, 3 I. The First Disestablishment 1. Revolutionary Disestablishment, 15 2. Federal Disestablishment, 53 II. The Antebellum Settlement 3. Resistance and Revisionism, 81 4. New England Disestablishment, 119 III. Legal Disestablishment 5. Legal Christianity Conceived, 149 6. Legal Christianity Applied, 173 7. Legal Christianity Refuted, 205 IV. The School Question 8. The Rise of Nonsectarianism, 251 9. The Secularization of Nonsectarianism, 289

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V. The Gilded Age Settlement 10. Reaction, 329 11. Reconciliation, 359 Conclusion, 387 Notes, 393 Index, 457

The Second Disestablishment

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Introduction

During the 1800 presidential election, a group of conservative New England clergy, distressed at the prospect of Thomas Jefferson being elected president, produced a series of pamphlets attacking the vice president’s heretical religious beliefs. Relying on rumor, suspicion, and excerpts from Jefferson’s Notes on the State of Virginia (among other writings), the clergy accused Jefferson of being a “confirmed infidel” and a “howling atheist.” Although the Federalist-leaning clergy were motivated largely by political considerations, the divines genuinely feared that Jefferson’s election would bring down God’s wrath upon the new nation. A “crisis of no common magnitude [would] await . . . our country,” the Reverend John Mason wrote, through such “national regard or disregard to the religion of Jesus Christ” by Jefferson’s election. “If there be no God, there is no law,” echoed the Reverend William Linn, another Jefferson critic. “[G]overnment then is the ordinance of man only, and we cannot be subject for conscience[‘s] sake.” Jefferson’s deistic beliefs made him an easy target for his Calvinist critics. But his nonconforming theology represented only the surface of the ministers’ complaints; more troubling for the clergy, Jefferson epitomized the nation’s embrace of Enlightenment rationalism, which they believed had brought about a diminished role for religion in public life. Religious conservatives feared that rationalist principles were becoming integrated into the culture and government at the expense of evangelical Christianity.1

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Jefferson and his allies were so concerned that the allegations could cost him the election that they mounted a defense of his character. In newspaper articles and pamphlets, Jefferson’s supporters worked to rehabilitate the Virginian’s religious credentials. Rather than being an atheist, Jefferson had “in his writings . . . spoken reverently of the christian religion,” wrote Abraham Bishop, who carefully added that Jefferson had “for years supported at his own expense a preacher of the gospel.”2 More significant than this early attempt at political spin control is how the rebuttals revealed a decidedly different vision of the relationship between religion and the new republic than was proffered by Jefferson’s opponents. “Government is an human institution, introduced for temporal purposes,” wrote New York Republican lawyer Tunis Wortman. “[I]t was never intended to be the sovereign arbiter of religion, conscience, and opinion”: Religion and government are equally necessary, but their interests should be kept separate and distinct. No legitimate connection can ever subsist between them. Upon no plan, no system, can they become united, without endangering the purity and usefulness of both—the church will corrupt the state, and the state pollute the church.3 In the end, the clerical attacks made little difference in the election outcome, with Jefferson and his running mate, Aaron Burr, winning by a comfortable margin in the electoral college, the only question being which of the two men would end up as president. Even so, the episode troubled Jefferson. Early in his administration, he seized an opportunity to comment publicly on his understanding of the relationship between religion and government. In 1801, a Connecticut Baptist society wrote to Jefferson to congratulate him on his election. In its letter, the Danbury Baptist Association bemoaned its mistreatment as a minority religious community in a state that still maintained a religious establishment. Jefferson’s response, in what has become known as the Letter to the Danbury Baptists, set out his perspective on church and state: Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State.4

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Thirty-one years later, and only seven years after Jefferson’s death, Supreme Court Justice Joseph Story published his influential treatise Commentaries on the Constitution of the United States. Second only to Chief Justice John Marshall for his contributions to nineteenth-century law, Story was the leading antebellum authority on the meaning of the federal Constitution. Writing about the First Amendment in his Commentaries, Story proffered a strikingly different view of the religion clauses. He remarked that, at the time of the adoption of the Constitution, “the general, if not universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with private rights of conscience, and the freedom of religious worship.” In Story’s view, the “real object” of the religion clauses was not to “level all religions . . . by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment.” Not only was the government permitted to show preference for Christianity and to support its endeavors, the nation’s customs and traditions all but obligated the government to do so.5 Jefferson’s and Story’s visions for church-state relations could hardly be more dissimilar. Although they were a generation apart in age, they were contemporaries during the formative years of the early nineteenth century, observing the same political and social conditions but disagreeing on many points. The model for church-state relations in a republic was one of their more significant disagreements. For years, historians and jurists have debated whether Jefferson’s or Story’s vision of church-state relations represents the more accurate depiction of the attitudes and practices during the founding and early periods of the republic. This debate has been important for both historical scholarship and churchstate adjudication. In the first modern establishment clause case, Everson v. Board of Education (1947), Justice Hugo Black pronounced Jefferson the winner, claiming that he (along with his fellow Virginian James Madison) reflected the early intentions and attitudes toward church-state relationships. Black insisted that their writings—represented in Jefferson’s Act for Establishing Religious Freedom and Madison’s Memorial and Remonstrance, both arising out of Virginia’s struggle for disestablishment—provided the appropriate benchmark for interpreting the First Amendment religion clauses. Black restated the command of the act and Memorial in simple and stark terms: The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any

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amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”6 Black’s belief in the singular importance of the founding period for interpreting the religion clauses and in Jefferson and Madison as the authoritative expositors of that early understanding was shared by the Everson dissenters. Justice Wiley Rutledge concurred on the significance of Jefferson’s and Madison’s works, writing that the documents from the “Virginia struggle for religious liberty . . . became [the] warp and woof of our constitutional tradition.” Rutledge asserted, “No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” For Rutledge and his fellow dissenters, Black had simply failed to place sufficient weight on the dictates contained in the documents or to see them as controlling in the church-state conflict being considered.7 Black’s opinion also reflected a belief that religious disestablishment had been perfected at the national level during the founding period, with a majority of the states doing the same prior to or immediately following constitutional ratification. (Final political disestablishment would not take place until the last New England state, Massachusetts, succumbed in 1833.) More significantly, Black understood disestablishment to be a constitutional mandate required by the free exercise and establishment clauses, with the implication being that members of the founding generation understood it in a similar light. Black’s analysis did not distinguish between various levels of potential disestablishment (e.g., political, legal, constitutional, cultural), creating the impression that, at the time of the drafting of the First Amendment, disestablishment had been consensual, comprehensive, and complete. The unanimity of support for Black’s interpretation of history indicated that the justices believed that not solely political disestablishment but also legal and constitutional disestablishment had been achieved by the end of the founding period. Despite receiving unanimous support on the Court, Black’s historical analysis met with quick criticism. Legal scholars Edward Corwin, John Courtney Murray, James O’Neill, and Mark DeWolf Howe decried the Court’s selective use of historical documents and the assertion of infallibility that accompanied that history, now revealed. Debate has continued to rage among jurists, historians,

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and legal scholars about whether the framers of the First Amendment truly intended to create a regime of church-state separation and, if so, what that concept meant to the designers of the clause. Few constitutional concepts have been more powerful, revered, or hotly contested. Within the bench, bar, and academy, people have disagreed over the significance of the separationist writings of Jefferson and Madison, on one hand, and those early practices suggesting a potentially more accommodating regime, as represented by the writings of Story, on the other hand.8 Adherents and critics of the Black interpretation have generally agreed on one point, however: the founding period is the seminal event in understanding American church-state relations. Ever since Justice Rutledge’s pithy observation about the significance of history for religion clause adjudication, lawyers, scholars, and judges have liberally relied on history to justify their arguments and holdings about the proper relationship between church and state.9 One twenty-first-century study indicates that, out of 115 church-state cases decided between 1947 and 2006, the justices cited Madison 189 times and Jefferson 112 times.10 This is not surprising. The lure of capturing history for constitutional interpretation is irresistible. History legitimizes legal arguments and judicial decision making by offering an aura of authority and objectivity, if not a putative constraint on judicial subjectivity. History also promotes the legitimacy of an otherwise disputable position by providing a purportedly independent and apolitical source of information from which all parties can draw and upon which all people can agree. The ability to capture the historical essence of church-state separation thus provides the victor with commanding authority to shape public policy and opinion, and constitutional law itself.11 Understandings of the founding generation thus represent the gold standard of authority for lawyers and constitutional historians. According to Stanford University’s Larry Kramer, modern constitutional theory can fairly be described as “‘Founding obsessed’ in its use of history.” The founding has become that incomparable and seminal event in U.S. history, such that we treat it as “conclusive and sacred” and the Constitution’s authors and ratifiers as “special and privileged” in their apparent understanding of its contents. Modern Americans are “held captive by the success of the eighteenth-century Founding Fathers.”12 Not only do we treat the founding as unique and special; we tend to see it as a static and completed event. It is as if all human knowledge and wisdom came together for one brief fifteen-year moment, that longdeveloping notions of democracy, freedom, equality, and civic virtue reached their apex between 1775 and 1790 and then ceased developing, particularly from the perspective of the founders. The founding, it seems, is that moment in time when the founders “bequeathed their values and deeds to the present.”13

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This perspective is triply flawed: first, it ignores the long development of ideas and the myriad experiences that shaped eighteenth-century Republican theory, including notions of religious freedom and equality.14 Second, it suggests a past that was unified and positive rather than one facing competing ideological theories and social pressures. Finally, such a perspective is untrue to the founders themselves, who saw history and the political theories they were espousing as a process, not as something static. The founders’ 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, not an accomplished reality. The founders did not believe that their recent struggle for religious freedom had been perfected through the political disestablishment at the national and state levels; they were willing to espouse ideas of disestablishment that would take time to be achieved. Multiple notions of church-state relations, constantly developing and being refined, informed the early discussions. It was only through the experiences of the nineteenth century that earlier notions of church-state separation found their awkward application and became a closer reality, which led to a second disestablishment, this time in the nation’s civic institutions—primarily in education and the law. It was this second disestablishment, as much as the first, that would facilitate the constitutional disestablishment of the latter twentieth century.15 For years, the nineteenth century was the “forgotten century” for traditional reviews of American church-state relations. Casebooks and historical surveys commonly gave cursory coverage to the century. Reviews predictably started with a discussion of the Puritan theocratic experiment, fast-forwarded to the founding period, and then jumped to the incorporation of the First Amendment in the 1940s. Along the way, mention was sometimes made of a handful of late nineteenth-century Supreme Court church property disputes and Mormon polygamy cases, as if those events represented the sum of a century of constitutional development.16 More recently, constitutional historians have come to recognize what religious historians such as Robert Handy have known for a long time: the nineteenth century was the crucible for a religious identity that left an indelible imprint on the culture and its institutions, an identity that remains with us to this day. In 2002, Philip Hamburger wrote a comprehensive and influential, though thematically flawed, history of the period, Separation of Church and State.17 Others, including Jon Butler, John Witte, Gaines Foster, Daniel Dreisbach, Mark McGarvie, Sarah Barringer Gordon, and Noah Feldman, have written on important church-state episodes of the century. As Kurt Lash has argued, one cannot appreciate the meaning of the religion clauses in the twenty-first century without understanding the important events during the

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nineteenth century that transformed patterns, relationships, and attitudes. Both Hamburger and Lash recognize that disestablishment (and church-state separation) was a developing concept and dynamic force throughout the nineteenth century.18 The nineteenth century presents a rich paradox when one starts exploring church-state relationships. In 1800, the United States represented the only secular government on earth, revolutionary France excepted. Formal, political disestablishment was the rule at the national level and all but complete among the states. In 1879, the Supreme Court embraced Jefferson’s metaphor that the establishment clause erected a “wall of separation between church and state.” Yet, for most of the century, the “wall of separation” was more of an illusion than a reality; despite the Jeffersonian/Madisonian vision, the new republic that emerged in the early 1800s was popularly described as a “Christian nation,” which was represented through revivals and reform associations, blasphemy and Sabbath laws, religious oath requirements, and state maintenance of a Protestant-oriented public school system. Religious historians have described the nineteenth century as a “Protestant empire” where Protestant/evangelical beliefs and values dominated the nation’s culture and institutions. Despite this circumstance, the century was also a time of accelerating religious diversity, from within Protestantism and from without. Religious voluntarism, an expanding American frontier, and soaring immigration combined to produce vigorous competition for evangelical Protestantism: Mormonism, spiritualism, transcendentalism, and Catholicism were a few of the more familiar challengers. At the same time, people from various religious perspectives embraced the concept of disestablishment between religion and government as an American ideal. Throughout much of the century, versions of church-state separation served as competing paradigms to the Christian-nation motif. This competition reached its apex in an 1892 Supreme Court decision (Church of the Holy Trinity v. United States) which declared America to be a “Christian nation.”19 Although the Christian-nation decision has been misunderstood and subsequently reviled even by Court conservatives, a handful of modern scholars have embraced a gentler version of the maxim as more accurately representing the historical interrelationship between church and state during the nineteenth century. In 1965, Mark DeWolf Howe wrote in The Garden and the Wilderness that the nation’s founders fully understood that there was an “interdependence of law and religion,” and “early state reports are full of cases in which decisions were affected, and sometimes controlled, by the thesis that Christianity is a part of the common law.” Howe maintained that these decisions “constitute persuasive evidence that it was a common assumption in the first decades of the nineteenth century that state governments may properly become the supporters

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INTRODUCTION

and friends of religion.”20 Picking up on Howe’s thesis, Harold J. Berman wrote extensively about the loss of the “moral dimension” of the American legal system while he advocated greater recognition of the religious bases of U.S. government and law. Relying on nineteenth-century cases that declared America to be a Christian nation, Professor Berman maintained that “[p]rior to World War I the United States thought of itself as a Christian country, and more particularly as a Protestant Christian country; since then it has ceased to do so.” While never pleading for a return to the days of religious preferences, Berman nevertheless bemoaned the “irrevocable transition of twentieth-century America from a nation which had previously identified itself as Protestant Christian to a nation of plural religions,” with the resulting loss of religious influences on government and law.21 Faced with these accounts, secular scholars have tended to cede the nineteenth century to the religionists, preferring to explain the period as an aberration, a dark age that preceded the renaissance of the 1940s when the Supreme Court rediscovered the “true” (i.e., Jeffersonian) meaning of church-state separation. In contrast, religionists prefer to read the non-separationist events of the nineteenth century as the best indicator of the founders’ intentions for church-state relationships. This latter story becomes powerful ammunition for those who dispute the Supreme Court’s decisions restricting public school prayer, religious school funding, and the government’s use of religious imagery. In both instances, however, assumptions have been made about the nineteenth century without appreciating the diversity of views and the development of constitutional principles that gradually led to the secularization of American law and institutions.22 This book examines the development of church and state during the nineteenth century, primarily at the state level. It is a study of 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. Contrary to what some scholars have asserted, a second disestablishment did not take place with the Everson decision but occurred during the nineteenth century, laying the foundation for the third, constitutional disestablishment of the mid-twentieth century.23 Although it was slow and incremental, the second disestablishment of the nineteenth century was as important to constitutional development as the third disestablishment ushered in by Everson. In arguing for a second, gradual disestablishment, this book does not advocate a reinvigorated secularization thesis. That model, as advanced by Max Weber and Peter Berger, maintains that, over time, modernization and other social forces led to a decline of religious belief and religious authority in society. Secularization as a paradigm was

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increasingly criticized in the 1990s by historians and religious sociologists as failing to acknowledge significant counter-trends over the past two centuries. Some aspects of a secularization model remain useful, however. Rather than seeking to explain wholesale societal shifts, secularization should be viewed simply as a decline in religious authority or affiliation in particular institutions and as a shift in attitudes from matters of ultimate concern to more proximate ones. In many ways, this describes the development of church-state relations during the century.24 The nineteenth century is thus a story of competing and interrelated forces and ideas, sometimes reinforcing religious authority but more frequently challenging that position. Throughout the century, religious affiliation and fealty grew steadily, and religious values continued to influence the culture and its institutions. For many leading figures—judges, lawyers, educators, politicians, and, of course, religious leaders—religion was a primary, if not constant, factor in the ordering of their world views. At the same time, people understood that their government, legal system, culture, and civic institutions were becoming secularized, i.e., being transformed in a way that deemphasized religious authority. Commentators during the latter half of the century frequently wrote about secularizing forces as a reality.25 The point is that competing—or, better, intersecting—forces of religion and secularization coexisted throughout the century. Particularly during the second half of the century, religious and legal figures embraced aspects of secularization as a way to maintain if not perfect religious influences on the culture. The gradual secularization of civic institutions during the century—this book prefers to use the term “disestablishment”— did not mean that religion itself was on the decline. However, the undeniable disestablishing trend of the period would impact attitudes toward and understandings of church-state separation and lay the groundwork for the future diminution of religious influences in the law, government, civic institutions, and culture. Part I of this book begins with a consideration of the founding period, when Americans at the national and state levels reworked both the legal and societal arrangements between church and state, resulting in the formal disestablishment of religion and the establishment of governments based primarily on secular, rationalistic principles. That 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

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eventually lead to legal and institutional disestablishment. Part II examines the rise of the Christian-nation maxim as a reaction to political disestablishment and a counter to the Jeffersonian/Madisonian vision of church-state separation. Part III examines legal disestablishment during the nineteenth century, a process that gradually exchanged fealty to the maxim that “Christianity is part of the common law” with a reliance on secular, instrumentalist bases for the law. Part IV considers one of the more important episodes of the nineteenth century that affected popular notions of church-state separation: the rise of nonsectarian public schooling and the ensuing conflicts over Protestant religious practices and the funding of Catholic parochial schools. Finally, part V considers a second period of reaction to disestablishment and secularization following the Civil War, one that sought to recapture the vanishing notion of America’s Christian nationhood. That part concludes with the triumph of institutional and legal disestablishment and the death of the Christian-nation maxim as an organizing concept. The history of the nineteenth century is thus one of initial political disestablishment leading slowly to a greater separation of religion from legal and civic institutions. This gradual second disestablishment laid the foundation for a third, constitutional disestablishment in the latter twentieth century, represented by the church-state decisions of the modern Supreme Court.

PART I

The First Disestablishment

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1 Revolutionary Disestablishment

[A government] founded on the most rational, equitable and liberal principles. —Samuel Langdon, “The Republic of the Israelites: An Example to the American States” No event in U.S. history has received more scholarly attention than the nation’s founding. A leading area of study has concerned the intellectual foundations of the nation’s republican system, as represented in the federal and state founding documents. Historians such as Gordon Wood and Bernard Bailyn have framed the modern-day inquiry by demonstrating a rich and varied compendium of impulses that informed the emergent republican ideology.1 Identifying the nation’s intellectual origins has been at the center of the ongoing controversy over the ideological basis and meaning of the Constitution’s religion clauses. In scholarly and popular writings, as well as in constitutional litigation, debate has raged over which intellectual traditions most influenced the attitudes of the founders and their generation toward matters of church and state: Calvinism, evangelicalism, Enlightenment thought, classical republicanism, Whig theories, or an amalgam of the foregoing. Overlaying this consideration of competing ideologies are the contemporary practices that indicated varying degrees of government patronage of religion. In simple terms, the debate breaks down along the lines of

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whether the founders created a “Christian nation” or intended to have a “Godless Constitution.”2 The men and women of the founding generation were keenly aware that they were witnessing a singularly important event in human history—that the still unfolding American republic truly represented a novus ordo seclorum. Not only were they creating a republic dependent on popular will—something never done before on such a grand scale—they also were designing a nation where all legitimacy and authority came from the very people to be governed and not from a supernatural source or divine-law principles. The risks were enormous: never before had a nation purposefully disassociated itself from religion or failed to assign to the prevailing religious sentiment a position of prominence. Many doubted whether a free government could exist without the sanction of God. That question—how to reconcile long-standing beliefs about the interdependence of the church and the state with developing notions of freedom of conscience, religious equality, and republican secularity—would underlie the debate over disestablishment in the late eighteenth and early nineteenth centuries.

Intellectual Foundations Much of the initial success of this new experiment in government can be attributed to the intellectual preparation of the founders, many of whom had been developing the philosophical justifications for their actions long before the drafting of the Declaration of Independence. For approximately fifty years, gradually at first and then with greater urgency as the crisis with England loomed, colonists had been imbibing, debating, and refining theories of governance. Inspired primarily by classical and Enlightenment writers, emerging Whig theories, and their own experiences in self-governing, colonial leaders had by 1775 settled on the intellectual foundations for the state, concluding, in the words of John Adams: “there is no good government but what is republican.” Ultimate authority for the state would rest on the consent of the people. Because “[a]ll men are naturally in a state of freedom, and have equal claim to liberty,” John Tucker declared in a 1771 election sermon, “all government, consistent with that natural freedom, to which all have an equal claim, is founded in compact, or agreement between the parties.”3 Out of this rich intellectual milieu emerged a secular theory of government, an assumption that would underlie the creation of the American republic. Theorists such as John Locke and Jean-Jacques Rousseau had written of governments formed by compacts of people, who were the ultimate sources of

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authority and who delegated to government the responsibility to create an ordered society. Because government was of human origin and served chiefly to secure the property and happiness of the people, it had no inherent moral component, let alone a connection to divine sources. By refuting the doctrine of the divine right of kings, Locke’s political theories challenged the notions of a government based on divine authority and that civil law was subject to religious mandates. In its place, he and other Enlightenment writers advocated a minimalist government with no responsibility for ensuring piety or conforming religious opinions. In his influential Letter Concerning Toleration, Locke wrote that “the whole power of civil government is concerned only with men’s civil goods, is confined to the care of the things of this world, and has nothing whatever to do with the world to come.” Because the “care of souls” was not the business of government, “the civil power ought not to prescribe articles of faith, or doctrines, or forms of worshipping God, by civil law.” Such words were groundbreaking, in that they implied a commonwealth unconcerned with religious fealty or the maintenance of public virtue. But most important, Locke linked religious freedom and the separation of the religious and governmental realms to the perpetuation of free, legitimate governments.4 Other influential Enlightenment works included Baron Montesquieu’s Spirit of the Laws (1748), which, among other matters, advocated toleration in religious belief and freedom of worship, and the writings of Henry St. John, Lord Bolingbroke, who discounted the divinity of the scriptures and a religious basis of the law. Montesquieu and Bolingbroke were read by the founding generation, particularly a young Thomas Jefferson. Writers of the so-called Scottish Enlightenment—David Hume, Francis Hutcheson, and Thomas Reid—with their moral “commonsense” philosophy also influenced many of the founders, including James Madison, John Adams, and James Wilson. In addition, the founding generation imbibed the works of the radical Whig philosophers, like John Trenchard and Thomas Gordon, the authors of Cato’s Letters (1720–1723). Trenchard and Gordon were strong advocates of freedom of expression and government accountability and spoke out against corruption in the government and in the Anglican Church.5 Later opposition writers who advocated for reforms in politics and the church included John Cartwright, Richard Price, and Joseph Priestley. Priestley, who corresponded with many of the founding generation before fleeing to America in 1791, called for the repeal of the Test and Corporation Acts (which limited office holding to communicants of the Anglican Church) and the disestablishment of the Church of England, insisting on an even greater separation of the religious and secular realms than had Locke. Priestley criticized any “union of civil and ecclesiastical power” as an “unnatural mixture,” thus

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suggesting that Locke’s notions of minimalist government and religious toleration could only exist under a regime of disestablishment. Nevertheless, Priestley believed that “religious motives may still operate in favour of the civil laws, without such a connection as had been formed between them in ecclesiastical establishments.”6 The “key book” of the founding generation, according to Bernard Bailyn, was Political Disquietations, written by Whig schoolteacher and theorist James Burgh. Like many radical Whigs, Burgh spoke out against religious establishments, warning of “a church getting too much power into her hands, and turning religion into a mere state engine.” In his book Crito, Burgh called for building “an impenetrable wall of separation between things sacred and civil. . . . the less the church and the state had to do with one another, it would be better for both,” the former phrase later copied by Thomas Jefferson. Burgh’s fans and subscribers included not only Jefferson but also George Washington, John Adams, John Hancock, John Dickinson, Benjamin Rush, Roger Sherman, and James Wilson, a “who’s who” of the founding generation. Together, Burgh and Priestley brought their refinement of Locke and other Enlightenment and Whig theorists to the forefront of revolutionary thought.7 All of these authors were widely read by the founders and are generally considered by historians to be ideologically central to the founding of the nation. Their works informed the thought of revolutionary leaders as they began the process of creating republican states out of former British colonies.8 Philip Hamburger, in his book Separation of Church and State, dismisses such intellectual foundations for church-state separation, preferring to locate the principle in later events of the nineteenth century associated with antiCatholic animus. Hamburger minimizes Locke’s commitment to church-state separation by relying on inference and omission, arguing that, despite his statements in the Letter, Locke “made no direct objection to government support of religion” nor advocated disestablishment of the Church of England.9 But Locke’s writings must be viewed in their time, when notions of religious toleration and a division of ecclesiastical and civil functions were in their nascent stages. Locke’s advocacy for any form of religious and civil separation was significant, even if his views pale in comparison to later conceptions. Even Hamburger acknowledges that Locke envisioned a church “absolutely separate and distinct from the commonwealth,” a notion that would restrict the influence of each institution on the other. The “bounds of the church” cannot “in any manner be extended to civil affairs,” Locke insisted, “because the church itself is a thing absolutely separate and distinct from the commonwealth and civil affairs.” Other statements by Locke, while lacking in exactness, indicate his opposition

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to enforced taxation for religion, with him remarking that no ecclesiastical officer “can deprive any other man who is not of his church or faith of life, liberty, or any part of his worldly goods on account of religion.” The point is not whether Locke offered a complete model of church-state separation but whether he challenged existing regimes by advancing principles upon which the framers could build their own conceptions.10 The American revolutionary thinkers applied this theory of a minimalist state based on the consent of the governed to justify their resistance to the actions of the British government. To neutralize claims of the Crown’s inherent power—at times cloaked in notions of divine delegation—colonists offered paradigms where earthly authority came not from some higher source but from natural rights of justice and liberty that resided in the people. In a republic, wrote Boston minister Gad Hitchcock in 1774, “rulers have their distinct powers assigned to them by the people, who are the only source of civil authority on earth.” Based on this reversed ordering of the old lines of authority, the Crown and Parliament were under “the most sacred ties to consult for the good of society.” Only to the extent they promoted “this valuable end, they are ordained by God, and clothed with authority by men.”11 At times, American political writers justified their theories by arguing that their natural rights were endowed by the Creator. Boston lawyer James Otis, a leading pamphleteer, commonly combined higher-law claims with Enlightenment notions of preexistent natural rights to argue that the king and Parliament were equally subject to the law: “There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.” Pennsylvania lawyer John Dickinson, another influential writer of the period, also used a natural rights version of higher law in his letters and pamphlets. He wrote in 1766 that the law came from a “higher source” than the king or Parliament: it came from “the King of kings, and Lord of all the earth.” The law was thus “created in us by the decrees of Providence, which establish the laws of our nature.”12 However, Cornelia Le Boutillier has demonstrated that, when the founders wrote about natural law, they usually gave it a utilitarian meaning rather than a transcendental one, despite the religious-sounding rhetoric. Though possibly originating in a higher source, political authority had been instilled in individuals, who then relinquished it only through their consent. When patriot writers referred to the “laws of God,” they usually did not depend on scripture or revelation as the content of natural law; rather, their sources were primarily Locke, Montesquieu, Hugo Grotius, and other Enlightenment thinkers.13

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The preeminence of Enlightenment thought during the founding period does not mean that it served as the sole basis of revolutionary thought. Republican ideology derived from eclectic sources of values—classical liberalism, common law, evangelicalism, and Calvinism—in addition to Enlightenment and Whig theories. Patriot writers synthesized “these disparate strains of thought” into a shared political rhetoric. In spite of the inherent conflicts among the assumptions underlying various traditions (e.g., belief in the goodness of human nature, which was common in Enlightenment thought, was diametrically opposed to Calvinist thought), colonial leaders were able to extract consistent themes and to construct a rhetoric that reflected an amalgam of various ideologies.14 Religion—whether identified as Puritan, Calvinist, or evangelical—was one of the ideological sources that informed the nation’s founding. As the unifying theological thread, Calvinism represented the “common [religious] faith” of Americans before the Revolution. But the late colonial expressions of Calvinism were diverse, informing Congregational, Presbyterian, Dutch Reformed, Baptist, and even Anglican thought. While still theologically orthodox, eighteenth-century Calvinist thought increasingly recognized the voluntary nature of belief and the need for the institutional separation of church and state structures. At the same time, Calvinist clergy approached the events of the Revolution and founding with their millennial and covenantal perspectives, often using biblical types to explain the political events.15 Protestant evangelicalism, arising out of the spiritual Great Awakening of the 1740s, was also a fertile source of the republican ideology informing the founding period. The awakening, with its emphasis on personal salvation, individual authority, and voluntary association, nurtured nascent democratic values of equality and freedom of conscience. The religious fervor of the period also rekindled dormant interest in the millennium and America’s special destiny. Some religious historians, such as Alan Heimert and Ellis Sandoz, have stressed “the centrality of religious ideas” during the revolutionary era, insisting that historical evidence suggests “a substantial religious dimension to our founding.” Modern popular writers have taken such arguments a step further, often attributing the origin of republicanism chiefly to religious impulses. One author has argued that “[t]he history of America’s laws, its constitutional system, the reason for the American Revolution, or the basis of its guiding political philosophy cannot accurately be discussed without reference to its biblical roots.” At this extreme, republican ideology is all but synonymous with Christianity; the founders are portrayed as divinely inspired pietists and the founding documents as based on Christian principles.16

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Without question, a dynamic religious environment informed republican ideology by providing the Revolution with a greater, transhistorical meaning, one that explained events as part of a continuum reaching back to biblical times. In so doing, religion contributed directly to the rhetoric of the times. Yet no single value system dominated the period or controlled political discourse, despite Calvinism’s claim to being the common faith of the people. Divergent streams of thought became intermeshed during the revolutionary period through a shared rhetoric as people reacted to tumultuous events. Religion’s greatest influence was through the ability of its leaders to integrate Enlightenment and Whig theories under the cope of religious discourse.17 Early on, the war with France, the Intolerable and the Test and Corporation acts, the Quebec Act, and the controversy over the appointment of an American bishop politicized the clergy and led them to expand their understandings of good and evil. Enlightenment and Whig political terminology entered into the Calvinist and evangelical vocabulary as clergy began to speak in terms of equality and liberty. Citing “Mr. Lock’s” Treatise on Government, Connecticut’s Elisha Williams wrote in 1744 that “reason teaches men to join society . . . [and] to make a body of laws agreable to the law of nature. . . . It is they who thus unite together, viz, the people, who make and alone have right to make the laws that are to take place among them.” Thirty years later, the Reverend Samuel Sherwood would use similar terminology, writing that all societies “have their beginning and origin in voluntary compact and agreement,” which people “have entered into by consent and free choice.” Because all people possess inherent natural rights, civil rulers were under “sacred obligations” to observe those “eternal rules of justice and righteousness” in their dealings with the colonists.18 Once the Revolution began, clergy used an amalgam of biblical imagery and Enlightenment thought to describe the conflict. Initially, the theme was one of a wayward people being punished for their transgressions. The Reverend Samuel Langdon, in a 1775 election sermon following the battles of Lexington and Concord, declared that the “true cause of the present remarkable troubles” was that the people had “rebelled against God. We have lost the true spirit of Christianity, tho’ we retain the outward profession and form of it.” Following the Declaration of Independence and the victories at Trenton and Saratoga, clergy seized on every “interposition of Divine Providence” on behalf of the colonial effort. In a 1777 sermon, the Reverend Nicholas Street compared the American states to the children of Israel while Great Britain became Egypt and King George, Pharaoh. Continuing the theme of redemption, Street argued that, though the colonists were blessed by God, like Israel, they risked ignoring God’s commandments and becoming “sadly corrupted [in] their way” through their preoccupation with political matters:19

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For if public virtue fails and people grow vicious and profane, selfish and oppressive under the sorest judgments and calamities, we have reason to fear the worst; that God will multiply our distresses and increase his judgements, till we are brought to a repentance and reformation. We see that God kept the children of Israel in the wilderness for many years after he delivered them from the hand of Pharaoh, on the account of their wickedness.20 A similarly guarded view of America’s chosen status is revealed in Connecticut divine Samuel Sherwood’s widely circulated revolutionary sermon “The Church’s Flight into the Wilderness.” Though Sherwood proclaimed the “incontestible evidence, that God Almighty, with all the powers of heaven, are on our side,” he too warned that the new nation could “be sorely rebuked and chastised for [its] woeful aposticies, declensions and backslidings.”21 These and other sermons indicate the limits to the religious rhetoric among revolutionary clergy. As with Street’s and Sherwood’s sermons, most comparisons of America during the Revolution to Old Testament Israel appeared in calls for accountability and redemption, not in claims that America fulfilled some biblical ideal. While revolutionary clergy professed that God was on their side, they generally avoided claims that the new nation found its basis in Christian principles. Civil government was not “so from God, as to be expressly appointed by him in his word,” wrote Boston minister John Tucker in an election sermon. Rather, it is “founded on the very nature of man, as a social being, and in the nature and constitution of things.” All government, therefore, “consistent with that natural freedom, to which all have an equal claim, is founded in compact.” Sherwood, too, writing in 1774, asserted that because “societies and communities have their beginning and origin in voluntary compact and agreement,” all people had “their liberty and free choice to agree upon such a form of government.” By this point, the clergy were too imbued with natural rights theories to resurrect a Puritan model professing that authority for government rested in God. Identifying a higher authority for the new nation would also have been inconsistent with those arguments that had denied a similar source of authority for the Crown. “The line, indeed, between one society, and another, is not drawn by heaven,” declared Congregationalist Daniel Shute, “nor is the particular form of civil government.”22 As America’s victory appeared more attainable, allusions to the interworkings of Providence naturally increased. In a 1780 sermon preached before the Massachusetts legislature, the Reverend Samuel Cooper remarked on the “striking resemblance between our circumstances and those of the ancient Israelites; a nation chosen by God [is] a theatre for the display of some of the most

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astonishing dispensations of his providence.”23 Following Yorktown, orthodox clergy celebrated the victory as a sign of America’s fulfillment of a millennial destiny. In a 1783 election sermon before the Connecticut General Assembly, Ezra Stiles, later to become president of Yale College, identified the guiding hand of Providence in the recent victory over the British. George Washington was the “American Joshua” who had been “raised up by God and divinely formed by a particular influence of the Sovereign of the Universe for the great work of leading the armies. . . . And who does not see the indubitable interposition and energetik influence of Divine Providence in these great and illustrious events?” With the victory secure, Stiles referred to the United States as “God’s American Israel” and predicted the “prophetick” destiny of the new nation.24 To a lesser degree, secular politicians were affected by the millennial and providential fervor of the times and often spoke in religious terms. John Adams wrote in his diary in 1765 that he “always consider[ed] the settlement of America with reverence and wonder, as the opening of a grand scheme and design of Providence.” Years later, Adams attributed Washington’s victory at Yorktown to the “great designs of Providence,” writing that “[t]he progress of society will be accelerated by centuries by this revolution.”25 Even leaders with deist leanings, including George Washington, Thomas Jefferson, and Benjamin Franklin, used providential language and biblical imagery when describing the extraordinary events. Following Yorktown, Washington downplayed his own role in achieving victory, attributing success to a superintending Providence: “the praise is due to the Grand Architect of the Universe.” Such rhetoric was common; even a cursory review of the speeches and correspondence of the founders reveals that they “were as vigorous in their pronouncements on America’s providential destiny as any clergyman.”26 Undue significance can be imputed to the founders’ use of religious language and their willingness to speak in providential terms. In light of the extraordinary times and the prevalence of religious discourse, it would have been remarkable if the founders had not employed biblical terminology in their public statements. Although many of the founders ascribed a special quality to the nation’s founding, few attributed more than an indirect providential influence in explaining the monumental events. Like the American clergy who for twenty years had been preaching about the consensual basis of government, the founders viewed the authority for the new nation in secular Enlightenment terms. More than anything, the founders were public figures who utilized contemporary modes of discourse that conflated various strains of thought popular at the time. As one commentator has noted, by the mid-1770s “religion was so deeply intertwined with Revolutionary ideology that it seems virtually impossible to distinguish between them.”27 All groups shared a millennial vision and

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spoke in providential terms. The result, to use George Marsden’s phrase, was that there was “no distinctly ‘Christian’ line of political thought” as opposed to secular political thought: Everything was Christian, and nothing was. Orthodox Calvinist American patriots accordingly shared a single political orthodoxy with the Thomas Paines, Thomas Jeffersons, and Ethan Allens of their day. Only when it came to narrowly restricted questions of “religion” did sharp differences appear.28 The modern emphasis on the disparate strains of revolutionary thought— particularly between a secular/rationalist and Calvinist/evangelical perspective— was not as evident to those of the founding period. As Gordon Wood has written: Whatever the differences that may have existed among the [revolutionaries], all those committed to revolution and republicanism in 1776 necessarily shared an essentially similar vision of the corporate commonwealth—a vision of varying distinctiveness fed by both millennial Christianity and pagan classicism. Enlightened rationalism and evangelical Calvinism were not at odds in 1776.29 This is not to say that Enlightenment and Whig thinkers failed to understand their differences with Calvinist orthodoxy, evangelical enthusiasm, or Anglican moralism. John Murrin is correct that Enlightenment rationalism, “civil humanism, classical liberalism and the Scottish Enlightenment all challenged Calvinist orthodoxy.” But rather than being displaced, religious leaders were influenced by secular lines of thought and incorporated complementary strains into their political views. At the same time, secular political leaders employed the familiar and common language of religion. Still, the overarching perspective that tied together the founders’ political theories—and the common discourse of statecraft—was that of Enlightenment rationalism.30

The Understandings of “an Establishment” Before considering the religious disestablishment at the state and national levels in the last quarter of the eighteenth century, it is important to understand the variety of church-state arrangements that existed during the late colonial era. For most of the preceding 150 years, nine of the original British colonies had maintained mandatory tax support for ministers, religious teachers, church maintenance, and/or public worship. In addition to providing financial support

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for the established denomination(s), these systems afforded legal and political benefits to those churches and their members while they disqualified nonconformists from holding public office, voting, or participating in important legal matters. In the southern colonies, primarily Maryland, South Carolina, and Virginia, the establishment was institutionally formal with the Anglican Church receiving tax support for its ministers, glebe land for its churches, and official preferences under the laws. Only Anglican clergy could officiate at certain domestic ceremonies, such as marriage; only Anglican churches received corporate protection and could own property; and only Anglican communicants could hold public office and, at times, vote. The “privileges” associated with the establishment flowed two ways, however. By virtue of awarding these legal preferences, colonial assemblies had a say in the operation of Anglican churches, such as the selection of clergy and the enforcement of church doctrine. In Virginia, for example, the General Assembly enacted laws in 1631 and 1632 that established the number of wardens per parish and set the number of sermons that Anglican clergy were to preach every year. In the South, dissenting churches and their ministers were tolerated at best, and at worst they were persecuted if the latter did not obtain licenses to preach.31 Religious strife was relatively rare in the southern colonies until the end of the colonial period. After 1750, the Anglican establishments came under pressure from an increasing religious pluralism produced by the Great Awakening and immigration from outside of England. The revivals emphasized both voluntarism and enthusiasm that challenged the staid Anglican establishment, leading to the break-off of American Methodism. With the influx of Presbyterians, Quakers, Moravians, and Baptists, among other sects, came increased religious dissent and conflict. Presbyterians agitated for greater parity with Anglican churches, including a share of tax revenues, while Baptists resisted the licensing requirements, landing several of their preachers in Virginia jails. Although an Anglican establishment existed in all of the southern colonies until the Revolutionary War, it was most effective in Virginia and the tidewater areas of Maryland and South Carolina.32 An Anglican establishment technically existed in New York after 1693, but Anglicans represented a distinct minority against the Dutch Calvinists, Presbyterians, Huguenots, and the growing heterodoxy of dissenting sects. The Ministry Acts (1693, 1705) afforded recognition of the Anglican Church and authorized vestrymen to raise taxes for the support of “good and sufficient Protestant ministers.” Much of the money went to Dutch and Presbyterian churches, which in turn resisted Anglicans’ efforts to assert their privileged status. In the years preceding the Revolution, religious dissenters—spurred by controversies over the appointment of an Anglican bishop in the colonies and

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the favorable treatment given to Anglican-controlled King’s College (later Columbia University)—mounted a campaign to repeal the laws establishing the Anglican Church. In 1769 and 1770, bills to exempt dissenting Protestants from ministerial taxes and to repeal the Ministry Acts passed the assembly, only to be tabled in the Anglican-controlled Governor’s Council. New York, with its weak establishment and exploding religious diversity, was ripe for disestablishment.33 In New England, a less centralized system provided tax support for Congregational churches, which was assessed by each town. Towns and parishes were coterminous (except in Boston), and male residents elected a minister/ religious teacher for the town/parish. After 1727, colonial officials in Massachusetts and Connecticut allowed Anglicans to have their assessments paid to their own churches, a privilege that was gradually extended to members of other dissenting faiths—Presbyterians, Baptists, and Quakers—provided the dissenting churches and their members made formal application for the exemption and support. Otherwise, dissenters and non-adherents were forced to support the dominant Congregational church. Although technically constituting a system of multiple establishments with each Protestant denomination or sect entitled to public support, the arrangement favored the Congregationalists by custom if not by default. Dissenters were required to file certificates of membership in their respective churches with the parish clerks; failure to do so (or affiliation with an unrecognized religious body) meant that they were assessed for the support of the Congregational church. The town’s “settled” religious teacher—invariably a Congregationalist minister—was the presumptive recipient of public support and officiated at marriages and all public events, such as the offering of fast and election sermons. Even though officials in Massachusetts, Connecticut, and New Hampshire defended their church-state arrangements with their public support of religion, they equivocated about whether their systems constituted religious establishments, in part to diffuse Anglican charges of the latter’s displacement from its entitled position.34 The remaining colonies—Delaware, New Jersey, Pennsylvania, and Rhode Island—never instituted systems of religious assessments nor officially recognized any church. This “failure” was due in part to the influence of William Penn and Quaker settlers in the first three colonies and the religious plurality of all four colonies.35 All colonies, however, including those without religious establishments in the form of tax assessments, maintained a variety of laws requiring a belief in God and Jesus for office holding and excluding Catholics and non-Christians from being able to swear the oaths that were necessary for many legal functions. And all colonies, to varying degrees, imposed laws regulating behavior according to religious standards (e.g., prohibiting public

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swearing, blasphemy, adultery, fornication, bastardy, and gambling) and regulated Sunday activities, even if they did not require church attendance. Tithingmen in New England and vestrymen in Virginia and South Carolina enforced Sunday church attendance, collected assessments, policed gaming and other entertainment on Sundays, and otherwise regulated public behavior deemed to be immoral.36 A religious establishment in mid-eighteenth-century America thus meant more than financial support of one or several Protestant faiths. It also included a host of preferences and laws that affected people’s legal rights and status and regulated activities based on religious norms. Religious establishments also reinforced religious customs and practices that were integrated into daily life. And in the southern Anglican colonies, it meant the active regulation of church doctrines and functions by civil authorities. At the time, however, Americans likely disagreed over what factors were characteristic of a religious establishment. Aside from a handful of notable persecutions during the seventeenth century, America lacked the history of religious persecution and corruption that colonists regularly associated with the Smithfield fires and the ecclesiastical hierarchies of Europe. Yet, colonists were sensitive to the religious preferences inherent in the American establishments and increasingly associated mandatory religious tax assessments with religious coercion. At the same time, the majority of colonists likely believed that public support of religion and worship, either financially or through official suasion, was important for the maintenance of civil society and the perpetuation of public morals and civic virtue. A similar number likely viewed laws restricting political and legal rights to Christians (or Protestants), moral codes of conduct, and official religious pronouncements as distinct from a coercive system of religious assessments, though not as inconsistent with a religious establishment. Society’s dependence on religious norms and the state’s reciprocal reinforcement of those norms had little to do with the growing opposition to the religious preferences represented by the religious taxes.37 In defining a “religious establishment,” most colonists would have referenced the criteria associated with the Anglican establishment in England under the Test and Corporation Acts (and, to a lesser extent, with the situation in colonial Virginia and South Carolina): forced tax support for a single denomination; legal and financial preferences for that church alone; civil involvement in church governance; civil disabilities for religious nonconformists; and a climate of seeming toleration that often turned into persecution of dissenters and their churches. During the height of the crisis over the appointment of an American bishop in the 1760s, Boston Congregationalist minister Charles Chauncy used these criteria to distinguish an Anglican establishment from the

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Standing Order in New England: “we are in principle against all civil establishment in religion. It does not appear to us that God has entrusted the State with a right to make religious establishments. . . . we claim no right to desire the interposition of the State to establish that mode of worship, [church] government, or discipline we apprehend most agreeable to the mind of Christ.”38 As is evident from Chauncy’s statement, however, he and many New England colonists did not view a multiple establishment where taxes were distributed to Protestant churches according to taxpayer preferences as infringing on rights of conscience or as constituting an establishment. Writing from Boston in 1776, “Worcestriensis” insisted that establishments involved requiring dissenters to adhere to the prevailing religion and subjecting them to “pains, penalties and disabilities” for their refusal to conform. “Compulsion, rather than making men religious, generally had a contrary tendency,” Worcestriensis argued. But this did not mean that legislatures were prohibited from encouraging “GENERAL PRINCIPLES of religion and morality”:39 It is lawful for the directors of a state to give preference to that profession of religion which they take to be true, and they have a right to inflict penalties on those who notoriously violate the laws of natural religion, and thereby disturb the public peace. . . . [T ]oleration, will not disprove the right of the legislature to exert themselves in favor of one religious profession rather than another, . . . [ for they] are BOUND to do their utmost to propagate that which they esteem to be true. If the greatest part of the people, coincide with the public authority of the State in giving the preference to any one religious system and creed, the dissenting few, though they cannot conscientiously conform to the prevailing religion, yet ought to acquiesce and rest satisfied that their religious Liberty is not diminished. For Worcestriensis, even a forced assessment for support of the dominant church did not rise to the level of religious compulsion: This suggestion starts a question, which had caused much debate among persons of different religious sentiments, viz. Whether a minor part of a parish or other corporation, are, or can be consistently obliged to contribute to the maintenance and support of a minister to them disagreeable, who is approved by the majority. . . . [N]one can reasonably blame a government from requiring such a general Contribution, and in this case it seems fit it should be yielded

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to, as the determination of those to whose guardianship the minority have committed themselves and their possessions.40 The fact that Worcestriensis had to defend the system indicates that it was coming under attack by religious dissenters, particularly Massachusetts Baptists led by Isaac Backus.41 One of the more comprehensive statements indicating contemporary views about religious establishments is contained in a 1777 petition by Presbyterian minister William Tennent of Charleston, South Carolina, to that state’s legislature as it was considering a new constitution.42 Tennent represented a coalition of dissenting churches that objected to perpetuating the Anglican establishment under the new constitution. In his petition, he identified several levels of religious establishments, all of which, he claimed, “interfere[d] with the rights of private judgment and conscience.” At the most extreme level were those establishments “which lay heavy penalties upon those who refuse to conform to them.” There was no “more horrid cruelty exercised upon the rights of conscience” than a system “which imposes fines, imprisonment and death, upon those who presume to differ from the established church.” Tennent did not claim that such an establishment had ever existed in America, but implied that tyranny “in greater or smaller degrees” was at the core of all religious establishments.43 The “next kind of establishment,” one that Tennent claimed had existed in South Carolina, makes a legal distinction between people of different denominations, . . . it taxes all denominations for the support of the religion [of ] one; it only tolerates those that dissent from it, while it deprives them of sundry privileges which the people of the establishment enjoy. . . . The law knows the Clergy of the one, as ministers of the gospel; [t]he law knows not the Clergy of the other Churches, nor will it give them a licence to marry their own people. . . . The law builds superb Churches for the one—it leaves the others to build their own Churches. The law, by incorporating the one Church, enables it to hold estates, and to sue for rights; the law does not enable the others to hold any religious property . . . [but they are] obliged therefore to deposit it in the Hands of Trustees, to be held by them as their own private property, and to lie at their mercy. Under such establishments, the state also set itself up “as a judge in church controversies,” which encroached on the freedom of the established church. Tennent asserted that, like the first form of establishment, this second form was also inconsistent with “our first notions of justice and equality.”44

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A third idea of establishment being promoted by some in South Carolina was to maintain “the [current] Establishment, merely as a matter of religious superiority, without taxing other denominations.” But Tennent disagreed with a system of legal preferences even in the absence of a religious assessment. The proponents of this idea “seem to forget, that every reason for which they desire the superiority by establishment, operates as an abridgment of Religious Liberty. . . . Still there remains injustice, and a foundation for dissatisfaction.”45 A fourth form of establishment being considered by the legislature was “to establish all denominations by law, and to pay them equally.” Tennent believed such a system was also “absurd and impossible”: [T]he establishment of all religions would in effect be no establishment at all. It would destroy the very end of an establishment, by reducing things just to the same state they would be in without it, with this disadvantage, that [those] who could not obtain Church officers, might be oppressed, by being obliged to pay that which they received no benefit from.46 Tennent’s objection to this last form was not as strong as his petition indicates. His chief objective was for Presbyterians to receive the same legal privileges as the Anglicans, not to establish a regime of full religious liberty nor complete separation between religion and government. His opposition to a multiple assessment system lay more in its impracticality, rather than on principle. Although he insisted that he was “utterly against all establishments in this State,” the petition suggests that Tennent was inclined to accept some of the more benign aspects of an establishment, though he likely would not have considered them as being included in that designation: “The State may give countenance to religion, by defending and protecting all denominations of Christians, who are inoffensive and useful. The State may enact good laws for the punishment of vice, and the encouragent [sic] of virtue. The State may do any thing for the support of religion, without partiality to particular societies.”47 In the end, Tennent apparently believed that a truly equitable assessment for all churches, along with official recognition and protection of religion, did not constitute an establishment, at least not a coercive one. Still, by asserting Lockean notions of natural rights of conscience, Tennent’s arguments had broader implications. “Religious establishments,” Tennent wrote, “interfere with the rights of private judgment and conscience: In effect, they amount to nothing less, than the legislature’s taking the consciences of men into their own hands, and taxing them at discretion.”48 Thus, religious assessments, particularly for the benefit of one church but not necessarily limited thereto, was the hallmark of a religious establishment, along with the legal benefits and

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preferences the official church and its members received. As the final quarter of the eighteenth century progressed, however, Americans would expand their understandings of what practices implicated rights of conscience and were associated with a “religious establishment.”

Disestablishment in the States With the long history of colonial establishments and the ubiquity of religious imagery in popular discourse during the revolutionary period, it is remarkable that a majority of the founding documents were all but bereft of religious language. Instead, the documents took on secular or, at best, deistic overtones. Only a handful of the revolutionary constitutions contained acknowledgments of reliance on God or divine Providence and then did so in Enlightenment terms only. The preamble to the Pennsylvania Constitution of 1776 referred to the “blessings which the Author of existence has bestowed upon man,” while the Vermont Constitution of 1777 acknowledged “the goodness of the Great Governor of the universe.” Neither constitution—in good Enlightenment fashion—referred to God by name and neither invoked divine Providence for the task ahead. Even the vague acknowledgment of God was dropped in the 1790 Pennsylvania Constitution. Similarly, in 1779, the voters of New Hampshire rejected a proposed constitution that would have barred the legislature from enacting laws “contrary to the laws of God, or against the Protestant religion” and limiting voting to followers of the Protestant religion. Instead, in 1784, the New Hampshire legislature approved a constitution with no acknowledgment of God.49 Only the 1776 Maryland and the 1780 Massachusetts constitutions expressly acknowledged God and divine Providence by declaring the duty of all men to worship “God in the manner he thinks acceptable to him” (Maryland) or “publicly . . . to worship the Supreme Being, the great Creator and Preserver of the universe” (Massachusetts). Unique among all of the new states, Massachusetts declared that the authority for the “new constitution of civil government” came from “the goodness of the great Legislator of the universe.” Even these acknowledgments of God were tempered by Enlightenment terminology (e.g., “the great Creator and Preserver of the universe”; “great Legislator of the universe”), likely provided by its author, John Adams, a remarkable feat for the old Puritan colony.50 Most significant, though, is the absence of any acknowledgment of God or divine Providence in the remaining revolutionary constitutions. Georgia, for example, praised the “laws of nature and reason” as the source of inspiration for its new government. In addition, all of the early state constitutions affirmed that governmental power and authority “originates from the people.”51

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The preamble to the Delaware Constitution of 1792 demonstrated the subservient role of a Christian God to Enlightenment theory as the ultimate authority for state government. The Delaware preamble acknowledged that by “divine goodness” all men possess the “rights of worshipping and serving their Creator according to the dictates of their consciences,” but went on to assert that “all just authority in the institutions of political society is derived from the people, and established with their consent.” Even those state constitutions that initially provided financial support for public worship—Maryland, Massachusetts, New Hampshire, and Vermont—affirmed that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”52 The minimal religious rhetoric in the revolutionary state constitutions can be explained in part by the prevalence of Enlightenment thought and the fact that religious matters were of secondary importance to the revolutionaries. With the possible exception of the controversies surrounding the Test and Corporation Acts and the appointment of an Anglican bishop for the colonies, religious issues took a back seat to more pressing social and political ones. The religious imagery helped to explain the conflict, but it had little application to the practicalities of organizing state governments.53 While the near-absence of religious rhetoric in the revolutionary constitutions is significant, it would be inaccurate to characterize them as manifestos of free thought and religious equality. All of the early constitutions incorporated provisions that indicated a favoring of Protestantism or Christianity over other faiths. Common were provisions that affirmed equal religious rights for Protestants (but not others) or that required religious (i.e., Protestant) belief for public office holding and religious oaths for court testimony. All states professed to guarantee religious free exercise, but too often the provisions merely granted toleration to dissenting faiths.54 As Anti-Federalist “William Penn, No. 2” bemoaned in 1788: [W]e find it declared in every one of our [state] bill of rights, “that there shall be a perfect liberty of conscience, and that no sect shall ever be entitled to a preference over the others.” Yet in Massachusetts and Maryland, all the officers of government, and in Pennsylvania the members of the legislature, are to be of the Christian religion; in New-Jersey, North-Carolina, and Georgia, the protestant, and in Delaware, the trinitarian sects, have exclusive right to public employments; and in South-Carolina the constitution goes so far as to declare the creed of the established church. Virginia and New-York are the only states where there is a perfect liberty of conscience.55

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Several states barred clergy from public office holding or serving in their legislatures. A majority of the constitutions also referred to the importance of religion, morality, or piety in maintaining civic virtue. Finally, all states retained or reenacted laws regulating conduct according to a Christian standard, prohibiting Sabbath desecration, blasphemy, profane swearing, fornication, and bastardy.56 Although these laws and enactments could be interpreted as reaffirming the dependence of civil government on religion, most laws were not new creations but holdovers from the colonial charters. In many instances, the old laws and arrangements were the only references upon which the founders had to rely, and, while in tension with Enlightenment ideals, they offered a degree of stability in the tumultuous times. Hence, it is equally valid to view such laws as local attempts to maintain order and public virtue in a fragmented religious/ political environment. The religious prerequisites for office holding and oaths gradually disappeared in later constitutional revisions. As discussed in later chapters, sumptuary laws died harder and were enforced well into the nineteenth century. These religious behavioral laws, based on colonial notions of the moral conduct necessary in a godly society, would serve as a major link between the colonial and antebellum eras and would help to perpetuate belief in America’s Christian nationhood.57 Given the long history and variety of religious establishments in the colonies, as well as the diversity of thought as to what constituted an establishment, it is remarkable that several of the states quickly took steps to abolish their existing systems or to deprive their new governments of the authority to create such systems. With the advent of the Revolution, New York and North Carolina abolished any remnants of religious establishments by eliminating forced assessments, joining the ranks of New Jersey, Pennsylvania, Delaware, and Rhode Island. Granted, church establishments had never worked well in any of these former colonies (or not at all), so the prohibition on religious taxes and formal preferences was not difficult to accomplish. But the symbolism of these legislative actions should not be underestimated as they identified the states with an emerging principle. It is also significant that none of these new states considered moving in the opposite direction—toward increasing church-state ties—as a way of ensuring public morality and virtue in those troubling times, even though they were arguably free to do so.58 The remaining states (including Vermont after 1777) continued some form of tax subsidy and preference for religion. The early laws or constitutions of Massachusetts, New Hampshire, Vermont, Maryland, South Carolina, and Georgia provided for financial support of Christian ministers under what were

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essentially multiple religious establishments. (Connecticut maintained its tax assessment system under its colonial charter until it abolished religious assessments in 1818.)59 For example, the New Hampshire Constitution of 1784 provided: [M]orality and piety, rightly grounded on evangelical principles, will give the best and greatest security to the government, and will lay in the hearts of men the strongest obligations to due subjection; and . . . the knowledge of these, is most likely to be propagated through a society by the institution of public worship of the Deity, and public instruction in morality and religion.60 Under New Hampshire’s system of multiple establishments, each town could select a Protestant “teacher” to be supported through a general assessment. Dissenting Protestants could have their taxes go for their own ministers, provided their churches were incorporated by the state; non-Protestants or uncooperative dissenters were forced to pay for the majority’s denomination. Massachusetts went the extra step of requiring church attendance under the threat of arrest by the tithingman. Other states, including Connecticut, New Hampshire, and South Carolina, retained laws empowering tithingmen or church wardens to enforce assessments and prohibitions on working, amusements, or unnecessary traveling on Sundays.61 The most explicit religious establishment was in the South Carolina Constitution of 1778. Article 38 provided that the “Christian Protestant religion” was deemed, constituted, and “declared to be, the established religion of this State.” Only believers in God and in a future state of punishments and rewards were entitled to the full enjoyment of civil and religious rights, including the ability to hold public office. Moreover, each Protestant church was required to petition for incorporation by the state legislature, upon a showing that the church adhered to five doctrines of faith: 1st. That there is one eternal God, and a future state of rewards and punishments. 2nd. That God is publicly to be worshipped. 3rd. That the Christian religion is the true religion. 4th. That the holy scriptures of the Old and New Testaments are of divine inspiration, and are the rule of faith and practice. 5th. That it is lawful and the duty of every man being thereunto called by those that govern, to bear witness to the truth.62 South Carolina’s political establishment sounded worse than it was. At the same time that Article 38 imposed a religious test for office holding, it extended

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that privilege to all Protestants while it allowed a witness to swear “in that way which is most agreeable to the dictates of his own conscience,” thereby including Quakers and Mennonites. Also, even though the incorporation requirement potentially put public officials in the role of evaluating church doctrine, it extended that protection to all Protestant churches, something that William Tennent had sought. But most significant, the same article went on to provide that “No person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support.” By substituting notions of voluntary support for that of forced taxation, the 1778 constitution transformed the state’s earlier establishment into a paper tiger. Technically, Protestant churches still maintained a public role, but chiefly, South Carolina’s “establishment” amounted to “a method of incorporating churches, and no church received public tax support.”63 South Carolina’s inconsistent constitutional language is indicative of the dynamic attitudes toward religious equality and disestablishment during the founding period. Maryland presents an interesting case study of the overlapping perspectives about protecting rights of religious conscience but maintaining the past tradition of public support for and reliance on religion. Founded by the Catholic Calverts with a higher degree of religious tolerance than existed in many colonies, Maryland had succumbed to an Anglican establishment in 1702 following the Glorious Revolution. Catholics were disenfranchised and subjected to other legal and financial disabilities.64 With that mixed legacy, the Maryland Constitution of 1776 included four provisions that maintained aspects of an establishment while abolishing earlier infringements on religious dissenters. Article 33 proclaimed equal religious liberty to all professors of Christianity, a step that removed the legal disabilities that had been imposed on Catholics and other dissenters after 1702. The article went on to provide that no person “ought . . . to be compelled to frequent or maintain, or contribute, unless under contract, to maintain any particular place of worship, or of any particular ministry,” a clause that appeared to abolish religious assessments and the earlier Anglican establishment. Inconsistently, the next sentence authorized the legislature, “in their discretion, to law a general and equal tax, for the support of the Christian religion,” allowing each taxpayer to designate his assessment to a “particular place of worship or minister, or for the benefit of the poor of his own denomination.” Here, Maryland accomplished the complete opposite of South Carolina: it renounced a religious establishment but then provided for one through assessments. Unlike the rationale advanced in New Hampshire and other New England states, this tax was not to support public “teachers” or to advance a common morality but was an assessment to maintain churches. Finally, Article 33 went on to guarantee Anglican churches all rights to their

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earlier property, including glebe lands, and bound the legislature to honor its earlier obligations to raise taxes to build or repair Anglican churches. Additional articles required public officeholders to affirm a belief in the “Christian religion” and required an attestation of “the Divine Being” as a prerequisite for taking an oath. These last two requirements, though, were arguably liberalizations of earlier disabilities, with the latter allowing Quakers, Dunkers, and Mennonites to make a solemn affirmation in place of an oath. Maryland’s establishment thus contained contradictory elements, indicating competing notions about religious freedom and equality and the need for public support of and reliance on religion. But these innovations did not remain static; despite creating the framework for a religious assessment, Maryland voters in 1785 rejected a proposed tax. No assessment system would ever be put in place, with the state formally repealing the provision in Article 33 in 1810. As elsewhere, attitudes toward disestablishment and church-state separation in Maryland were dynamic and evolving.65 The fact that the majority of new states initially retained religious establishments is thus not a fair indicator of the trend toward disestablishment. All of those state legislatures struggled to balance evolving notions of rights of conscience with older beliefs about the importance of public religion for the betterment of society. More significant than this initial hesitancy is the fact that, between 1775 and the drafting of the First Amendment in 1789, five of those states—Georgia, Maryland, South Carolina, Vermont, Virginia—rejected or effectively abandoned their systems of tax assessments.66 Similar to the situation in Maryland, the first Georgia Constitution (1777) allowed for a religious assessment, although Article 56 provided that the tax could only be assessed “by consent” and then only for a minister of one’s “own profession.” Not until 1785 did the assembly pass an assessment bill that allowed each county to select a Christian minister who would receive the tax funds (apparently, dissenting families in a county could apply to receive a proportionate share for their ministers). Baptists objected to the passage of the law, and it is unclear whether the law was ever enforced. New constitutions in 1789 and 1798, respectively, removed a religious test for office holding and abolished all authority for assessments, further revealing the dynamic process of disestablishment.67 Disestablishment in Vermont took a unique path, with the state maintaining an “unconstitutional” establishment for several years. The Vermont Constitution of 1777 contained contradictory language regarding mandatory religious assessments. Article III initially affirmed the “natural and unalienable right [of people] to worship . . . according to the dictates of their own consciences and understanding.” Borrowing from the Pennsylvania Constitution, it went on to affirm that “no man ought, or of right can be compelled to attend any religious

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worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience.” This clause should have guaranteed political disestablishment. However, the same article also provided that every denomination should observe “the Sabbath or Lord’s day, and keep it up, and support, some sort of religious worship, which to them shall seem most agreeable to the revealed word of God.” Vermont officials interpreted this latter provision as authorizing the existing practice of towns assessing religious taxes. In 1783, the legislature enacted a law that clarified how the assessments were to be collected and the manner of obtaining certificates of exemption by religious dissenters. In 1786, however, the Vermont legislature revised the constitution of 1777, adding a phrase in the first clause of Article III to emphasize that the right to worship according to the dictates of conscience was pursuant to “their opinion” and removing the obligation in the final clause to “support” religious worship. The same revision also removed a limitation on the rights of conscience as applying only to “profess[ors] of the protestant religion.” At least on paper, these reforms forbade compulsory religious assessments and repudiated a legal preference for Protestantism in Vermont. But the following year, in a general revision of the laws, the legislature left in place the 1783 law authorizing religious assessments, which several towns continued to enforce over the objection of Baptists and other dissenters who asserted that the law was inconsistent with the 1786 constitutional revisions. Despite the complaints and petitions, the Federalist- and Congregationalist-controlled legislature resisted rescinding the unconstitutional law. Assessments continued sporadically, depending on the town and level of dissent. Not until 1807, with the rise of the Democratic-Republican Party in Vermont and an increase in Baptist adherents, did the Vermont legislature abolish all statutory authority for the collection of assessments. Despite this tortured path, disestablishment prevailed in Vermont, consistent with the general trend outside of New England.68 The early movement toward disestablishment at the state level and the diversity of attitudes toward the meaning of that concept are illustrated by the events in Virginia and Massachusetts, the two most important states in the new nation. Both colonies had long-standing and entrenched religious establishments. Despite those similarities, Virginia and Massachusetts went in starkly different directions. Although too much can be made of the influence of the Virginia assessment controversy on the drafting of the First Amendment, its experience in disestablishing religion remains instructive. From its earliest days, Virginia had a formal establishment that granted privileges and financial support to the Anglican Church. The assembly also enacted laws regulating behavior, requiring church attendance, and prescribing that all religious practices conform to

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the Church of England, though enforcement was relatively lax on the large and expanding Virginia frontier. Still, Virginia retained a fair degree of religious homogeneity and minimal dissent through the seventeenth and early eighteenth centuries. By the 1760s, however, the colony had experienced an influx of Presbyterians and Baptists, among other religious dissenters. The social stability provided by the Anglican establishment became strained, and public officials reacted to dissident attacks on Anglican hegemony. The 1774 imprisonment of several itinerant Baptist preachers for failing to obtain the necessary certificates grieved a young James Madison, who wrote to his friend William Bradford to “pray for Liberty of Conscience.” “Is an Ecclesiastical Establishment absolutely necessary to support civil society in a supreme Government?” Madison asked rhetorically. “[And] how far is it hurtful to a dependent State?”69 In 1776, the Virginia legislature adopted the Declaration of Rights, which famously substituted James Madison’s phrase “free exercise of religion” for George Mason’s original language guaranteeing only “the fullest toleration in the exercise of religion.” The declaration did not address the existing religious establishment, though Madison recommended a provision that “no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges.” Madison and establishment supporters alike recognized that the provision would have effectively disestablished the Anglican Church, a radical step at that early and uncertain stage. The provision was rejected, though the declaration’s free exercise guarantee created uncertainty about whether an enforced assessment would violate freedom of conscience. Adding to the uncertainty, the Virginia Assembly suspended religious assessments for several years during the war.70 In 1779, two competing bills brought the assessment issue to the forefront. Thomas Jefferson introduced his Act for Establishing Religious Freedom (Bill No. 82), employing a clever play on words. Jefferson’s proposed act sought to make support of religion completely voluntary, providing that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever” and, further, that “noone shall be enforced, restrained, molested, or burdened in his body of goods, nor shall otherwise suffer on account of his religious opinions of belief.” Drawing inspiration from Locke, Burgh, and Priestley, the act would have accomplished the most complete disestablishment of religion known to date while removing all legal disabilities on account of faith. The act was likely ahead of its time, particularly in the midst of a war effort that needed God’s favor, and it was tabled. Jefferson later acknowledged that he “had drawn in all the latitude of reason and right” in his effort to make “protection of opinion . . . universal,” but the bill “still met with opposition.”71

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About the same time, supporters of the Anglican Church introduced the Act Concerning Religion, drawn from Article 33 of the South Carolina Constitution, which declared that the “Christian Religion shall in all times coming be deemed, and held to be the established Religion of this Commonwealth.” The bill would have recognized those denominations that followed five articles of faith and would have provided for their incorporation. But, unlike the South Carolina provision, the bill included an assessment for the support of ministers. Even though the weight of public opinion appeared to favor this latter bill, it was tabled after surviving two readings.72 The Act Concerning Religion and Jefferson’s Bill No. 82 languished throughout the war. Uncertainty about the status of Virginia’s establishment remained, causing several groups to petition the assembly in 1783–1784 to enact a “general and equal contribution for the support of the clergy.” In 1784, Patrick Henry introduced a modest version of the 1779 assessment bill, Establishing a Provision for Teachers of the Christian Religion, to allow taxpayers to designate their Christian denomination of choice to receive their taxes and to allocate undesignated funds to “seminaries of learning.” Henry’s new bill removed the earlier reference to an establishment, possibly reflecting either discomfort with the term or the belief that a general assessment, with the ability to designate the recipient church, did not infringe on rights of conscience nor constitute a “religious establishment.” Henry’s bill received support from people who saw religion as necessary to ameliorate a decline in public morals: “Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers.”73 The general assessment bill garnered considerable support, with a leading Presbyterian body reversing its earlier opposition to a religion tax. Alarmed that the bill would be enacted (a preliminary version passed the Virginia house acting as a committee of the whole by a vote of 47–32), James Madison orchestrated a postponement while he secured the election of Henry as governor, thus removing his rival from the assembly. In the interim, Madison and other assessment opponents organized a petition drive. To rally support for the petition, Madison penned his famous Memorial and Remonstrance, setting out various arguments against religious establishments in general and religious assessments in particular. The Memorial reflects the influence of both Enlightenment and Whig writers, but also contains a variety of practical arguments for opposing establishments. Several of Madison’s arguments are notable. First, Madison viewed religious exercise and conscience as “unalienable right[s]” subject only to the “Creator.” As such, religion was a private matter, “wholly exempt from [the] cognizance” of government. Borrowing a theme from

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Locke’s Letter Concerning Toleration and Jefferson’s Notes on the State of Virginia, Madison made this argument in three places, equating claims of government authority over religious matters with a religious establishment: “If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government?” Civil officials were “[in]competent Judge[s] of Religious Truth,” Madison asserted. Second, the Memorial did not distinguish between exclusive and multiple establishments; all forms of religious assessments violated rights of conscience and constituted a religious establishment: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion to all other Sects?” Third, Madison used both history and logic to argue the dangers presented to civil society by religious establishments: they erected both “spiritual” and “political tyranny while inviting civil officers to “prever[t]” religion by turning it into “an engine of Civil policy”; they denied political and religious equality; and they undermined “moderation and harmony” among religious sects while inviting “Religious discord.” Finally, Madison argued that establishments harmed rather than advanced religious principles: “experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had the contrary operation.” Although Madison’s Memorial was not the sole memorial opposing the assessment bill, it was the most influential and helped to turn the tide of public opinion. Opponents sent 1,500 petitions to the assembly, many signed by evangelicals—including Virginia Presbyterians who had a second reversal of heart—and the legislature permanently tabled Henry’s bill. Taking advantage of the momentum, Madison reintroduced Jefferson’s Act for Establishing Religious Freedom, which passed overwhelmingly.74 Before Jefferson’s bill was enacted, however, conservative legislators sought to moderate some of the act’s more sweeping language by inserting an acknowledgment of “Jesus Christ, the holy author of our religion” to the preamble. Madison opposed the amendment, as did several legislators who “were particularly distinguished by their reputed piety and Christian zeal.” According to Madison’s notes, these evangelical legislators argued that “the better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion.” The legislators also viewed the acknowledgment as inconsistent with the secular basis of government, arguing it would make “his religion the means of abridging the natural and equal rights of all men, in defiance of his own declaration that his Kingdom was not of this world.” The amendment failed, in large part due to the opposition of the evangelical legislators. Championed through Madison’s Memorial, Jefferson’s act thus offered legislators a sharp contrast in church-state relations to Henry’s assessment bill;

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regardless of whether they agreed with all of Madison’s arguments, everyone understood the significance, if not the scope, of disestablishment that Jefferson’s act imposed. The act would serve as a model for a new era of churchstate relationships.75 Critics of the Everson interpretation of the Virginia assessment controversy, unable to dispute the spacious language in Jefferson’s act and Madison’s Memorial, point to contemporaneous measures considered by the Virginia Assembly— including bills supported by Jefferson and Madison—to suggest that the two men intended a less expansive form of church-state separation than Everson claims. The first measure, a bill to allow for the incorporation of Anglican churches, was a companion to Henry’s assessment bill and highly desired by the Anglican establishment. Madison reputedly opposed church incorporation, as he feared the accumulation of property and wealth by ecclesiastical bodies that incorporation would permit. Yet Madison supported its passage when it came up for a vote. Madison’s strategy was transparent rather than being ideologically inconsistent; as William Lee Miller contends, it appeased the “old Anglican forces, and at the same time it frightened the Presbyterians and others about an Anglican resurgence.”76 It also reserved Madison’s resources for the more important battle ahead: defeating the assessment bill. Madison wrote to his father in January 1785 that he assented to the incorporation bill “with reluctance at the time” in order to separate it from “the Genl Assesst [bill] which would otherwise have certainly been saddled upon us.” He anticipated that it would be “unpopular among the laity” and “soon [be] repealed, and will be a standing lesson to them of the danger of referring religious matters to the legislature.” Rather than indicating an inconsistency of position, Madison’s support for the incorporation bill reveals his political acumen and willingness to prioritize the principles at stake.77 Critics Robert Cord and Daniel Dreisbach point to a series of other bills considered by the Virginia Assembly in 1785–1786, several of which were either written or supported by Jefferson and Madison. All of the proposed bills would reputedly have inaugurated a more accommodating regime of church-state relationships than that suggested by the Memorial. One bill would have preserved for the Anglican Church the property—real and personal property as well as glebe lands—it had previously held under the establishment; another bill, apparently drafted by Jefferson, punished “disturbers of Religious Worship and Sabbath Breakers”; still another, also written by Jefferson, would have authorized the governor to designate days of fasting and thanksgiving; a final bill would have nullified marriages “Prohibited by the Levitical Law.” These bills, according to Cord and Dreisbach, reveal that the political leaders of Virginia, as well as Jefferson and Madison, were not committed to establishing a

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regime of strict separation of church and state as claimed by the Supreme Court in the 1947 Everson decision.78 While all of these proposed laws are instructive of the political dynamic and developing attitudes of the time, they are distinct bills that do little to negate the significance of Jefferson’s act or undermine Madison’s arguments in his Memorial. One should be cautious about referencing a legislator’s support for one bill as evidence of the meaning of a different piece of legislation. Although all of the bills dealt with religion in some respect, they paled in significance to the assessment issue, the unique importance of which all parties recognized. In the developing climate of disestablishment, it should not be surprising that attitudes toward particular applications evolved over time, even for Jefferson and Madison. Only the Sabbath bill was enacted, and that law can be seen simply as extending the long-standing custom of Sunday laws that were enacted in every state. Sabbath laws not only reinforced public morality; they also protected church worship from disruption by those who gathered in towns to shop, receive mail, and visit taverns. Sabbath laws had a chief purpose of protecting religious practice, which is consistent with the sentiments contained in Madison’s Memorial. The annulment bill, despite its use of biblical terminology, did not require an ecclesiastically performed marriage but simply required couples to obtain a marriage license rather than cohabitating. Expanding the authority to perform marriages was a matter of particular importance to the clergy of dissenting faiths and was consistent with Jefferson’s and Madison’s advocacy of religious equality. Madison’s support for the other two bills, also not enacted, likely shows his willingness to compromise on less immediate matters or is evidence of legislative logrolling. While the proposed laws used religious terms (e.g., “Sabbath,” “Levitical”), little significance should be attached to such nomenclature considering the ubiquity of religious discourse in the eighteenth century. More than anything, these contemporaneous bills indicate that notions of disestablishment, like ideas of church-state separation, were slowly developing, with immediate attention being given to the more egregious manifestations of religious establishments.79 The events surrounding the adoption of the Massachusetts Constitution of 1780, which resulted in the formalization of the state’s previously decentralized religious establishment, offers a complementary example of early understandings about disestablishment. Even though the outcome differed from that in Virginia and the majority of states, the Massachusetts experience demonstrates the increasingly controversial nature of religious establishments during the founding period. Opposition to an establishment was strong in Massachusetts, and supporters of the Standing Order had to reconcile their system with calls for greater religious equality and freedom of conscience.

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Since 1692, Massachusetts had guaranteed religious toleration but maintained an establishment system whereby each town elected a public minister or teacher to perform religious and quasi-public functions. After 1727, religious dissenters could have their share of the tax assessment abated or have it allocated toward the minister of their own church, provided they secured an exemption certificate and the church had sought and obtained official recognition. In 1774, John Adams described the Massachusetts assessment system as a “most mild and equitable establishment of religion” when compared to the ecclesiastical establishments that existed in England and the southern colonies, a characterization shared by most supporters of the Standing Order.80 The pamphleteer Worcestriensis wrote that the establishment in Massachusetts proceeded only from the benign frames of the legislature from an encouragement of the GENERAL PRINCIPLES of religion and morality, recommending free inquiry and examination of the doctrines said to be divine; using all possible and lawful means to enable its subjects to discover the truth, and to entertain good and rational sentiments, and taking mild and parental measures to bring about the design.81 Despite such assurances, a growing number of people, primarily followers of minority faiths, contended that the assessment system was neither benign nor equitable. Leading the charge against the Massachusetts system and the power of the Standing Order was Isaac Backus, the indefatigable leader of the Baptists. “God has appointed two kinds of government in the world, which are distinct in their nature,” wrote Backus in 1773, and the two “ought never to be confounded together.” Backus raised several objections to the assessment system that Madison would echo in his Memorial: the requirement of obtaining exemption certificates “implie[d] an acknowledgment, that the civil power has a right to set one religious sect up above another”; the system “embolden[ed] people to judge the liberty of other men’s consciences”; it interfered with the ability of every man “to judge for himself, concerning the circumstances as well as the essentials, or religion, and to act according to the full persuasion of his own mind”; and it “evidently tend[ed] to destroy the purity and life of religion.” Although Backus’s chief concern was the corrupting effect that establishments had on religion, he did not limit himself to religious arguments in his broadsides, relying also on natural rights theories, including the works of “Mr Locke.”82 In 1778, the revolutionary legislative council submitted a streamlined draft constitution for voter approval that contained two religion provisions: a requirement that high public and judicial officials be Protestants and a guarantee of “free exercise and enjoyment of religious profession and worship” for Protestants. Otherwise, the proposed constitution was silent on the matter of assessments

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and legal preferences for religion. Voters rejected the proposed constitution, citing a host of faults with its structure and substance; the failure to address the assessment issue was not central to the draft’s demise.83 Significant sentiment existed that a constitution should contain an explicit affirmation of the public role of religion and, for some, secure its public financial support. At the same time, the Standing Order faced growing opposition from evangelicals and deists. In a 1778 election sermon before the General Assembly following the demise of the proposed constitution, the Reverend Phillips Payson of Chelsea threw down the gauntlet by challenging those who would seek to weaken the existing religious establishment: The importance of religion to civil society and government is great indeed, as it keeps alive the best sense of moral obligation . . . hence, it is of special importance in a free government, the spirit of which being always friendly to the sacred rights of conscience, it will hold up the gospel as the great rule of faith and practice. Established modes and usages in religion, more especially the stated public worship of God, so generally form the principles and manners of people, that changes or alterations in these . . . may well be esteemed very dangerous experiments in government. For this, and other reasons, the thoughtful and wise among us trust that our civil fathers . . . [will] at all times guard against every innovation that might tend to overset the public worship of God, though such innovations may be urged from the most foaming zeal.84 As can be seen, Payson did not rest his support of the establishment solely on its salutary benefits to civil society but also on how it promoted public piety by “hold[ing] up the gospel as the great rule of faith and practice.” Payson’s sermon set off a two-year debate between pro- and antiestablishment forces through petitions and in newspapers. Isaac Backus responded to Payson’s sermon in his pamphlet Government and Liberty Described and Ecclesiastical Tyranny Exposed (1778), which brought together the arguments he had been developing for several years. Backus disputed Payson’s claim that a general assessment system respected rights of conscience merely because Baptists were eligible to receive a share of the funds. The existing system distributed tax moneys only to “orthodox” ministers and government-recognized churches, “impower[ing] the majority to judge for the rest about spiritual guides, which naturally causes envying and strife,” Backus replied. “It is not the pence, but the power, that alarms us. How can liberty of conscience be rightly enjoyed, till this iniquity is removed? The word of truth says, why is my liberty judged of another man’s conscience? Let every man be fully persuaded in his own mind.”85

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Backus also answered Payson’s claim that a provision for ministers and public worship was necessary to ensure virtue and perpetuate civil society: I am as sensible of the importance of religion, and of the utility of it to human society, as Mr. Payson is. And I concur with him, that fear and reverence of God, and the terrors of eternity, are the most powerful restraints upon the minds of men. But I am so far from thinking, with him, that these restraints would be broken down, if equal religious liberty was established.86 Religious establishments had not brought about pure or “natural” religion, Backus insisted, but had had the opposite effect: causing “tyranny, simony, and robbery . . . to be introduced and to be practiced under the Christian name.”87 Backus’s understanding of an establishment thus included not only the power to impose religious taxes but the larger claim of a mutual interdependence between religion and government. His greatest objection, however, was with the assumption that God had ordained government with any authority over religious affairs. Even though civil government was anointed by God, it “is left to human discretion.” (Backus, like many pietists, however, had few problems with laws that regulated behavior according to a Christian standard or that supported Sabbath worship.) Others supported Backus’s understanding of establishments, including a writer using the pseudonym “Mentor.” Mentor echoed Locke in arguing that civil magistrates had authority “to bind men only in cases which respect the well-being of society; and not at all in any case as it relates purely to the good of the kingdom of Christ.” Civil authorities could not administer an assessment system, Mentor asserted, “without defining the character” of religion: “The civil magistrate cannot enact laws for the support of the gospel ministry, without determining what are its qualifications and characters, and what are the real, true doctrines of the gospel which its ministers are to preach.”88 Backus’s and Mentor’s critiques, and the responses to them, demonstrate the diversity of opinion about what constituted a religious establishment. “Hieronymus” presented the primary defense of Payson and the Standing Order in the newspapers. “Mr. Backus’s ideas of a religious establishment appear to be prodigiously obscure,” Hieronymus wrote. “A religious establishment by law is the establishment of a particular mode of worshiping God, with rites and ceremonies peculiar to such mode, from which the people are not suffered to vary.”89 This limited view of an establishment allowed Hieronymus to claim: “In our laws, which relate to the settlement and support of ministers, I am not able to find any thing that has the appearance of establishment. All of the various denominations of Protestants are treated alike. The churches of all denominations are rendered capable of holding estates.”90

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As for the mandatory assessment, Hieronymus insisted that the tax, with its exemptions for dissenters, was “perfectly reasonable, so long as no particular mode of worship is established by law. . . . Particular rites and ceremonies are left to be managed at the discretion of each church, so that every man is left at liberty to attend divine worship in the manner which he supposes most agreeable to the scripture.” In other newspaper articles, Hieronymus distinguished between the ability of individuals to choose their own mode of worship and the “duty, which the Government is under a moral obligation to perform, to provide that the people shall have [religious] instructors.”91 The latter, which advanced only pure or natural religion and did not interfere with rights of conscience, did not constitute an establishment. This debate over the definition of a religious establishment and its ongoing necessity continued throughout the drafting of the Massachusetts Constitution and beyond, leading John Adams to remark that a “whole company of earthly hosts hath debated these heavenly things with an hellish intensity.”92 In 1779, the Massachusetts legislature called for a new constitutional convention. In response, several towns directed their delegates to seek protections for individual rights, including rights of religion. The town of Pittsfield instructed its delegates to draw up a Bill of Rights to include: all those unalienable and important rights which are essential to true liberty and form the basis of government in a free State, . . . particularly that as all men by nature are free, and have no dominion one over another, and all power originates in the people, so, in a state of civil society, all power is founded in compact; that every man has an unalienable right to enjoy his own opinion in matters of religion, and to worship God in that manner that is agreeable to his own sentiments without any control whatsoever, and that no particular mode or sect of religion ought to be established, but that every one be protected in the peaceable enjoyment of his religious persuasion and way of worship.93 Other towns joined Pittsfield in identifying a compact or social contract as the basis of a free government and calling for freedom of worship and liberty of conscience to be included in the constitution. Although the instructions spoke only of opposition to the establishment of a “particular mode or sect of religion,” they should be understood as expressing opposition to the status quo of multiple establishments, as legal preferences for a particular mode or sect technically did not exist in Massachusetts.94 The convention delegates selected a committee to draft the constitution, the committee in turn delegating the drafting to a subcommittee, which

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appointed John Adams to write the document, which he completed in October 1779. The convention, which ultimately made few alterations to Adams’s work, debated the constitution between November 1779 and March 1780. As submitted and ratified, the constitution contained as many as ten provisions concerning religion, including religious requirements for public office holding and the taking of oaths, as well as the acknowledgment contained in the preamble, discussed above.95 Two provisions in the Declaration of Rights were of particular relevance, although some charged that they were internally inconsistent. Article II declared the “right” and “duty” of all men “to worship the SUPREME BEING,” but proceeded to protect all persons from harm, molestation, or restraint in “worshipping God in the manner and season most agreeable to the dictates of his own conscience” or according to his “religious profession or sentiments.” Despite Article II making a strong statement about freedom of conscience, Article III then addressed the issue of a religious establishment generally and assessments in particular. The article began with a prefatory clause asserting that, because “the good order and preservation of civil government, essentially depend upon piety, religion and morality,” those values could only be diffused “by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Therefore, continued the article: [T]he people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.96 After setting up the assessment system, Article III then provided that every Christian denomination would be equal under the law and that “no subordination of any one sect or denomination to another shall ever be established by law.” The controversial language of Article III cannot be attributed to John Adams, who wisely declined to draft the article, having previously noted that “we might as soon expect a change in the solar system as to expect they would give up on their establishment.”97 Article III thus constitutionalized the previously informal assessment system set up by the law of 1692. But Article III dealt with more than religious taxes; it declared the government’s reliance on piety, religion, and morality,

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which could only be achieved through public worship and the support of Christian ministers, compliance with which the legislature could enjoin. The article also dropped the practice of exempting dissenters from paying the assessment, requiring instead that the taxes be paid to their own churches or, if not affiliated, to the minister elected by the town. Despite the inclusion of an antisubordination clause in the new constitution, the other provisions erased some of the gains Baptists and other dissenters had made over the previous decades. As a result, scholars have maintained that Article III was a step backward from the colonial practice and a rejection of the trend in other states toward greater disestablishment.98 The final language in Article III should not be construed to indicate a consensus on the issue of religious assessments, however. Professor Robert Taylor maintains that the article “was perhaps the most controversial one in the whole constitution.” The significance of Article III was not lost on the delegates to the convention nor on those following its proceedings. Its provisions caused “rancorous debate” among the delegates, and efforts were made to drop the article entirely, while other delegates attempted either to expand or contract its provisions. The ensuing public debate over ratification also demonstrated the division of opinion that existed over the need for public support for religion.99 As before, Isaac Backus criticized the religious establishment to be constitutionalized in Article III. The question, he stated, was not the importance of religion to civil society but “whether that duty ought to be enforced by the secular arm, or only by the authority of the great lawgiver and head of the church.”100 In addition to Backus, criticism of Article III during ratification came from “Philanthropos,” who authored several newspaper articles in an effort to sway opinion against the provision. Some of Philanthropos’s arguments were religious, echoing those of the Baptists: religion was a personal matter between a believer and God, and “the support and maintenance of public worship and the teachers of religion is not a civil duty.” But Philanthropos also disputed that free governments depended on public piety and that establishments promoted piety, morality, and civic virtue. Other states, including New York, New Jersey, Pennsylvania, and Virginia (at the time), promoted peace and civic virtue without religious assessments, Philanthropos noted. As a substitute for Article III, Philanthropos recommended adopting an article modeled after Jefferson’s Act for Establishing Religious Freedom. Support for Philanthropos came from the town of Ashby, whose Return addressed the inconsistencies between Article II—guaranteeing rights of conscience and forbidding any restraint on account of religion—and Article III authorizing assessments. “The third Article lays a restraint: for those who cannot Concientiously [sic] or Covenantly attend upon

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any publick teachers are under restraint . . . and so injured as to their Liberty and property.”101 Assessment proponents had the advantage of the draft constitution being on their side. Still, they mounted a vigorous campaign setting out the necessity of a religious establishment. Led by the Reverend Samuel West, writing as “Ireneus,” assessment proponents made several arguments that revealed their understanding of religious establishments and how they harmonized with rights of conscience. The multiple establishments of Massachusetts, by supporting all orthodox ministers and churches and the principles of virtue and morality, advanced “natural religion” only, not the religion of any sect, West wrote. Such natural religion promoted “peace, safety, and happiness” in society, goals that were the appropriate objects of free governments: “The civil good of society being the grand object of civil legislation, and public worship and the instructions of teachers of religion being necessary to promote civil good in society, it follows, that the support and maintenance of public worship, and the teachers of religion, is properly an object of civil legislation.”102 The state support of public worship and religious teaching was thus a civil, not religious, duty within the realm of civil governments. The abolition of public worship, as advocated by Philanthropos, would lead to “impiety, irreligion and licentiousness.”103 West’s argument was supported by the Return of Boston, which stated that the “preservation of civil Government essentially depends upon Piety, religion, and morality; and these cannot be generally diffused . . . but by the Publick Worship of God, and Publick Instructions in Piety, religion and morality.” Also like West, the Boston Return could not resist resorting to hyperbole: rejection of the assessment would result in the “greatest disorders, if not the Dissolution of Society.” “Remove the former by ceasing to support Morality, religion and Piety and it will be soon felt that human Laws were feble barriers opposed to the uninformed lusts of Passions of Mankind.”104 As for the claim that an assessment violated rights of conscience, West had three responses. First, following on his claim about the necessity of public worship, West argued that “full liberty of conscience does not imply in it, that men shall have liberty to have no conscience at all, or that they may be as obstinately wicked as they please.” Freedom of conscience involved the freedom to know God; without a mechanism to instill virtue and morality, man cannot realize this full understanding of conscience. West insisted that the “most abandoned wretch who has no conscience at all” would not be offended by simply paying a tax; moreover, he would not be constrained by conscience in demanding an exemption falsely. West charged that the freedom of conscience contained in Jefferson’s bill “grants liberty to hypocrites and liars, and puts the most abandoned and profligate upon an equal footing with men of honor and

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conscience.”105 Second, West insisted that, when read together, Articles II and III protected conscience: Here is the most ample liberty of conscience imaginable, granted to Deists, Mahometans, Jews and christians; for every person that owns the being of a God may chuse the manner and season for divine worship which suits him. . . . he is perfectly secure from harm, till he disturbs the public or bothers others in their religious worship. And finally, West maintained that the abolition of public support for religion deprived its supporters of their rights of conscience. Assessment opponents were not contending for liberty of conscience, West argued; instead, “their real design was to deprive a respectable part of the community of what they esteemed a right of conscience, viz, the right of supporting public worship and the tender of religion by law.”106 From all accounts, Massachusetts voters closely followed the newspaper debate over Article III and religious assessments. Voters considered each article separately, with Article III being the most contentious provision. Voters in several counties rejected it overwhelmingly. According to a study by Professor Samuel Morison, Article III received only 58 percent approval, short of the two-thirds required for ratification. Reputedly, those provisions requiring the governor to be a Christian and to swear a religious oath also failed to garner the necessary two-thirds vote. Despite these irregularities, the constitutional convention declared that the entire constitution had been approved, and it went into effect on October 25, 1780. Massachusetts had created a religious establishment, but it was not without a fight.107 As the above discussion demonstrates, ideas about religious freedom and disestablishment during the revolutionary period were fluid and evolving. Many people viewed religious establishments in a formal, political sense. Preferential tax assessments, legal disabilities on religious dissenters and constraints on their private worship, and, possibly, religious requirements for office holding were the sine qua non of establishments. In New England, people were divided over whether general assessments for the support of ministers and public worship equated with an establishment. Most New Englanders agreed in principle that infringements on rights of conscience were oppressive, but disagreed about whether the New England system violated such rights. Outside of New England, a substantial majority viewed rights of conscience more expansively to prohibit even a general assessment benefiting all Protestant or Christian sects. As historian Thomas Curry has written, in the 1780s, “The belief that government assistance to religion, especially in the form of taxes, violated religious liberty, had a long history.”108

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In contrast, government acknowledgment and encouragement of religion (e.g., thanksgiving proclamations) and government enforcement of religious/ moral norms that promoted public order (e.g., Sabbath and blasphemy laws) were generally not viewed as indications of religious establishments. The framers were building on their own personal experiences where public encouragement of religion had been commonplace during the colonial period and not viewed as being particularly onerous when compared to other practices. But these ongoing practices should not obscure the fact that all of the new states, with the possible exception of Massachusetts, were moving toward more expansive understandings of disestablishment and church-state separation during the last quarter of the eighteenth century. By 1800, disestablishment in the form of the prohibition of assessments and of religious preferences would be the rule of law in all the states outside of New England, including the newly admitted states of Kentucky and Tennessee. The trend toward political disestablishment was unmistakable and, as will be discussed in a later chapter, the three remaining state holdouts (Connecticut, New Hampshire, and Massachusetts) would face mounting pressure to disestablish until they succumbed in 1818, 1819, and 1833, respectively.

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2 Federal Disestablishment

There is not a shadow of right in the general government to intermeddle with religion. —James Madison, Virginia ratifying convention, June 12, 1788 Disestablishment at the federal level cannot be considered in isolation from what transpired in the various states. After all, many of the same people who advanced disestablishment in the states drafted and ratified the federal Constitution. While they were conscious of the distinct roles of the national and state governments and likely believed that the crucible of church-state interaction would remain on the state level, it is unlikely that their opinions about religious establishments would have changed when they considered the federal context. That said, language indicating the government’s patronage of religion is less evident in the federal documents, which are more pronounced in their secularity. The organic documents of the new national government contain only the vaguest references to God or divine Providence, in contrast to the handful of state preambles discussed in the previous chapter. Thomas Jefferson’s Declaration of Independence appealed to “the Supreme Judge of the world” while declaring the “Creator” as the source of the unalienable rights of life, liberty, and the pursuit of happiness. Government derived its power from the consent of the people, whose authority was based on “Laws

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of Nature” as well as coming from “Nature’s God.” Despite acknowledging the colonies’ reliance on “Divine Providence,” the declaration made no claims of America being specially chosen by God nor of its fulfilling a particular destiny. Neither was government identified as having a role in religious affairs.1 This should not be surprising, as the declaration was first and foremost an Enlightenment treatise, with Jefferson relying heavily on the writings of John Locke and other secular political philosophers. Jefferson’s many writings reveal his agreement with Locke that “the whole power of civil government . . . is confined to the care of the things of this world, and has nothing whatever to do with the world to come.” The “Nature’s God” of Jefferson’s declaration was thus not a Calvinist God but a deistic god of natural religion discovered through reason.2 In contrast to the Declaration of Independence’s philosophical defense of the new nation, the purpose of the Articles of Confederation was to serve as a compact for national governance for thirteen autonomous states. Nothing indicates that contemporaries viewed the articles as authorizing any role for government in the maintenance of religious virtue. The only reference to a religious undertaking was a passing expression of gratitude to “the Great Governor of the World” for inclining the state legislatures to form a union. Together, both documents indicated that religious issues—and specifically the relationship of religion to government—were of secondary concern to the founders when they were considering the basis for and design of the new nation.3 This is not to suggest that the delegates to the Continental and Confederation congresses were indifferent on the issue of government patronage of religion. Lacking the plenary authority of the state legislatures, the congresses had little opportunity to legislate on religious matters. The Continental Congress adopted a handful of religious practices engaged in by the colonial and early state legislatures—chaplaincies and legislative prayers, military chaplains, thanksgiving and fast day observances—and even endorsed the printing of the Bible and considered making purchases of the Bible during the Revolutionary War. What these actions indicate about prevailing attitudes is uncertain, as most were extensions of state practices and often were adopted without much debate or thought. Congress’s involvement with the Bible was spurred by a shortage of Bibles during the war (in part, because no English-language edition had been printed in the colonies). Even though Congress endorsed the proposed printing of an American edition in 1781, it twice declined to provide funds for the purchase or publication of the Bible, possibly reflecting growing discomfort among members as to the national government’s role in religious matters.4 In contrast, in 1776 Congress considered a proposal by John Dickinson that would have prohibited states from disadvantaging anyone on account of his religion or compelling the attendance at or support of “any religious

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Worship, Place of Worship, or Ministry, contrary to his or her Mind,” a measure that would have effectively abolished religious assessments nationwide. Congress rejected the proposal as infringing on the rights of states, but it is also likely that the proposal went further toward separation than many delegates were willing to go in 1776.5 But such ideas were percolating. In an important study of religion and the Continental and Confederation congresses, Derek Davis has documented a progression in attitudes toward religious liberty and church-state separation at the early national level that mirrors the evolution taking place in the states. In its most significant act, the Confederation Congress broke with the thenprevailing state practice of imposing a religious test for legislators, “a sure sign that the meaning of religious liberty in America was progressive and tended increasingly to ‘separate’ church and state,” Davis writes.6 Federalism concerns might again explain Congress’s action, as it acted to ensure that no state delegation could object to the religious qualifications of the delegates from another state. But even this explanation indicates an awareness of the potential divisiveness engendered by religious tests. And, as will be discussed below, in one of its final acts, the Congress refused to provide land grants for churches and houses of worship when it approved the land ordinance for the Northwest Territory in 1787. As Davis concludes: The Continental Congress . . . operated almost exclusively within an accommodationist paradigm. This fact recedes in significance, however, when it is recognized that the separationist paradigm was at that time only beginning to be recognized for its advantages to national life. All of the evidence, then, when examined in historical context, supports separationism as that paradigm of church-state thought that best captures the progressively evolving intentions of the founding fathers.7 Unlike the declaration and articles, the Constitution was bereft of even a passing reference to a deity. No reference to a divine guiding hand or allusions to Providence appear in its provisions. While religious imagery and metaphor can be found in the reported debates, discussions of a religious purpose behind the national government were nonexistent. Even Benjamin Franklin’s calculated appeal to prayer at a crucial moment in the proceedings was tabled by the delegates.8 The Constitution’s sole reference to religion went in the other direction. After minimal debate, the delegates overwhelmingly approved Article

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VI, clause 3, which provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Again breaking with the prevailing practice, religious tests for public office holding were constitutionally forbidden, ensuring that at least the national government would not be aligned with any religious faith. The delegates fully appreciated the significance of their action. Tench Coxe wrote that fall: No religious test is ever to be required of any officer or servant of the United States. . . . No such impious deprivation of the rights of man can take place under the new foederal [sic] constitution. The convention has the honour of proposing the first public act, by which any nation had ever divested itself of a power, every exercise of which is a trespass on the Majesty of Heaven.9 The delegates to the Constitutional Convention were not charting new ground, however, as people increasingly were criticizing religious tests as instruments of religious persecution and civil disqualification. Benjamin Rush had described test oaths as a “stain” on revolutionary principles, while Noah Webster called them a “badge of tyranny.” When the clause was challenged during ratification, North Carolinian James Iredell, a future Supreme Court justice, remarked that he “consider[ed] the clause . . . as one of the strongest proofs that could be adduced, that it was the intention of those who framed the system, to establish a general religious liberty in America.” No other provision of the founding period so clearly demonstrated the secular nature of the new national government.10 The lack of a reference to God or a religious purpose in the Constitution should not be surprising considering the religious beliefs of the men involved and their impression of the task at hand. A majority of the delegates held deistic or heterodox beliefs and drew their understanding of rights and governance from Enlightenment and Whig writers. While most delegates maintained membership in Protestant churches, only a handful were evangelical or theologically orthodox in their outlook. A large number, like Washington, believed in a detached deity who had set the world in motion according to rational principles. Though lacking the anticlericalism common among leaders of the French Revolution, most framers had an upper-class aversion to creeds and sectarianism, which they believed undermined national unity.11 Unlike Calvinism, the humanistic thought followed by the framers taught that eternal truths could be discovered through reason and common sense and that factions could be controlled through the mechanisms of republican government. The decision to adopt a constitutional system of checks and balances indicates the shared belief that government could not rely on civic virtue, which in turn helped to bring about a detachment of religion from republican government.

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James Madison recognized as much when he wrote in Federalist No. 10 that “neither moral nor religious motives can be relied on as an adequate control” on the passions of the majority in power.12 Madison reiterated the same belief later in Federalist No. 51: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.13 Accordingly, the founding fathers were under no delusion as to the secular character and purpose of the new government. John Adams summed up his understanding of the foundations for the government: Thirteen governments thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of the whole quarter of the globe, are a great point gained in favor of the rights of man. The experiment is made, and has completely succeeded; it can no longer be called in question, whether authority in magistrates and obedience of citizens can be grounded on reason, morality, and the Christian religion, without the monkery of priests or the knavery of politicians.14 This emphasis on secularity did not mean that the founders viewed republican government as hostile toward religion but simply that they believed it operated in a different sphere from the transcendent. Most expected that Christian principles would continue to play a role in fostering civic virtue and providing a moral context for public and private activity. Responsibility for advancing those principles, however, lay with churches, not with civil authorities.15

The Religious Provisions of the Constitution The closest that Americans have come to having a national discussion about the meaning of religious liberty and church-state separation took place in conjunction with the ratification of the Constitution. That discussion centered on two interrelated issues: (1) the debate over the Article VI, clause 3, prohibition against religious tests for national office holding; and (2) calls for an amendment to the Constitution to protect religious liberty.

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No event better illustrates the general understanding of the secular foundation and purpose of the Constitution than the ratification controversy surrounding Article VI, clause 3. During the state ratification debates, Anti-Federalists seized on the document’s prohibition of religious tests for office holding, with several alleging that it encouraged atheism in the new nation. Critics claimed that the no-religious-test clause was “dangerous and impolitic,” with one New Hampshire writer maintaining that “according to this [provision] we may have a Papist, a Mohomatan, a Deist, yea an Atheist at the helm of Government.” Relating a concern shared by many, Luther Martin told the Maryland Assembly that, “in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism.”16 For many Anti-Federalists, the no-religious-test clause indicated something much more profound than the prospect of a non-Protestant holding public office: that the Constitution relied on secular Enlightenment principles rather than on religious sentiments. During the ratification debates, AntiFederalists such as Richard Henry Lee of Virginia and Charles Turner of Massachusetts charged that the Constitution’s supporters deliberately sought to disassociate the new government from a religious foundation. In a speech before the Massachusetts ratifying convention, Turner urged “that without the prevalence of Christian piety, and morals, the best republican Constitution can never save us from slavery and ruin.” Turner argued that a national government had an affirmative duty to foster morality and civic virtue “by affording publick protection of religion. . . . [A] free form of government without the animating principles of piety and virtue, is dead.” Similarly, “Samuel,” writing in the Boston Independent Chronicle, charged that the effect of the oath clause was that “all religion is expressly rejected, from the Constitution. Was there ever any State or kingdom, that could subsist, without adopting some system of religion?”17 And in Connecticut, William Williams decried the absence of “an explicit acknowledgment of the being of God, his perfections and his providence” in the federal document. In order to remedy the error, Williams proposed alternative language to be inserted in the preamble: We the people of the United States, in a firm belief of the being and perfections of the one living and true God, the creator and supreme Governour of the world, in his universal providence and the authority of his laws: that he will require of all moral agents an account of their conduct, that all rightful powers among men are ordained of, and mediately derived from God, therefore in a dependence on his blessing and acknowledgment of his efficient protection in establishing our Independence . . .

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Williams, who otherwise supported ratification, acknowledged that his suggested wording had little chance of being approved. Still, Williams’s proposal typified the frustration of a small but vocal group who found fault with the Constitution’s acknowledged secular character.18 Quite likely, some Anti-Federalists raised charges about the Constitution’s infidel character merely as an argument against ratification. But others’ concerns were sincere. Isaac Kramnick notes that Anti-Federalists generally feared larger governments and the lack of homogeneity that they implied. A “virtuous republican government,” seen as indispensable by Charles Turner and other Anti-Federalists, required a small area and a “similarity of religion, manners, sentiments, and interests.” Anti-Federalists like Turner and Samuel believed that the necessary public virtue among the citizens could only be achieved by the government’s patronage of religion.19 Anti-Federalists were not alone in viewing the Constitution as having a secular basis; Federalists readily defended the irreligious character of the Constitution in their responses. Future Supreme Court chief justice Oliver Ellsworth, writing as “A Landholder” in the Connecticut Courant, defended the no-religious-test clause as the only means of preventing religious tyranny and avoiding discord among the nation’s numerous religious sects. However, it was the Anti-Federalists’ criticism that the Constitution lacked a religious foundation, Ellsworth wrote, that presented “the true principle, by which this question ought to be determined.” Emphasizing the civil nature of the government in his reply, Ellsworth asserted that the “business of civil government is to protect the citizen in his rights, to defend the community from hostile powers, and to promote the general welfare.” Civil government had no jurisdiction over religious matters and “no business to meddle with the private opinions of the people.”20 The Pennsylvania writer “Aristocrotis” made an even stronger claim about the secular nature of the new Constitution as demonstrated through the noreligious-test clause:

Religion, is certainly attended with dangerous consequences to government: it hath been the cause of millions being slaughtered . . . but in a peculiar manner the christian religion . . . is of all others the most unfavorable to a government founded upon nature; because it pretends to be of a supernatural divine origin, and therefore sets itself above nature. I grant, weak, feeble governments, such as our present systems, may stand in need of the visionary terrors of religion for their support; but such an energetic government as the new constitution disdains such

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contemptible auxiliaries as the belief of a Deity, the immorality of the soul, or the resurrection of the body, a day of judgment, or a future state of rewards and punishments. Such bug-bears as these are too distant and illusory to claim the notice of the new congress.21 Even some establishment clergy defended the secular Constitution. Rhode Island Congregationalist Enos Hitchcock commended the clause, stating that “it possesses liberality unknown to any people before. . . . Here all religious opinions are equally harmless, and render men who hold different opinions equally good subjects, because there are no laws to oppose them, no force to compel them.” For Hitchcock, the clause evinced “a government erected on the majesty of the people—a government which to bigotry gives no sanction . . . but generously afford[s] to all liberty of conscience.” The result was an “ample and extensive federal union, whose basis is philanthropy, mutual confidence, and public virtue.”22 Similar acknowledgments of the Constitution’s areligious character were made in those articles that became The Federalist Papers. James Madison, writing in Federalist No. 39, emphasized that the proposed constitutional structure would encourage virtuous and selfless officeholders who would be “superior to local prejudices,” a subtle reference to religious intolerance. In their numerous articles championing the Constitution, Madison and Alexander Hamilton anchored the ideological justifications for the new frame of government in the will of the people, not in some higher power. Throughout the course of the debate over ratification, neither Madison nor other Federalists denied that they were fashioning a government based on secular principles.23 The debate over the no-religious-test clause is also significant for the number of people, primarily Federalist supporters of the clause, who tied the prohibition to larger notions of religious liberty and disestablishment. James Iredell, in defending the clause in the North Carolina ratifying convention, asserted that it was “calculated to secure universal religious liberty, by putting all sects on a level.” “The exclusion of tests,” Zachariah Johnston echoed in the Virginia convention, “will strongly tend to establish religious freedom. . . . This is a principle which secures religious liberty most firmly.” But supporters associated test oaths with more than rights of conscience; they viewed their abolition as a positive step toward disestablishment. Religious tests, asserted Oliver Ellsworth, had their basis in the “opinion that one religion must be established by law, and that all who differed in their religious opinions must suffer the vengeance of persecution.” Samuel Spencer, a member of the North Carolina convention, also connected test oaths to the establishment of a “particular religion.” Religious tests “have been the foundation of persecutions in

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all countries,” Spencer declared. “But, . . . as there is not a religious test required, it leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and so no kind of oppression can take place.” Governor Johnston seconded Spencer’s claim that the absence of a religious test alleviated concern “that any one religion shall be exclusively established.”24 And in the Massachusetts convention, Isaac Backus made a connection between religious tests and religious establishments: “the imposing of religious tests hath been the greatest engine of tyranny in the world. And I rejoice to see so many gentlemen, who are now giving in their rights of conscience in this great and important matter. . . . [I]t is most certain that no such way of worship can be established without any religious test.”25 In the most colorful language, Aristocrotis proclaimed the benefits of the no-religious-test clause with respect to establishments: “This is laying the ax to the root of the tree; whereas other nations only lopped off a few noxious branches.”26 The no-religious-test clause thus highlighted the secular nature of the Constitution and the new government’s nonreliance on religious principles. Not all Anti-Federalists advocated the public support of religion or government enforcement of religious obligations; in fact, most would have been alarmed at any attempt to assign ecclesiastical duties to civil magistrates. But many believed that for republican government to succeed, public officials had to exhibit and encourage a civic virtue that came about only through religious means. Federalists might have shared these sentiments; however, they disputed that government had an affirmative role in promoting religious virtues. With the ratification of the Constitution, this latter view prevailed. But all sides to the debate acknowledged that the religious-test prohibition reinforced the secular basis of the document. The calls for a Bill of Rights during the ratification debates provide additional insight into the developing notions of disestablishment during the founding period. As one might expect, the Anti-Federalists feared that the new Constitution would shift power from the states to the national level, infringing on individual liberties and states’ rights. They, among others, pointed to the absence of a Bill of Rights limiting national power as a cardinal defect of the proposed Constitution. While some Anti-Federalists raised the issue merely to defeat ratification, others pushed for a series of amendments as a condition for ratification. “[W]e have no bill of rights,” the Pennsylvanian “An Old Whig” wrote in 1788, “and every thing therefore is in [Congress’s] power and at their discretion.”27 Federalists like James Madison and Alexander Hamilton initially opposed a Bill of Rights on the ground that one would imply the existence of powers that the national government did not possess. Hamilton wrote in Federalist No. 84 that such provisions were “not only unnecessary in the proposed

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Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” But Madison and Hamilton shortly acceded to the calls for amendments in order to secure ratification.28 Among the numerous proposed amendments were provisions to protect religious rights. As with the debate over the religious-test prohibition, the agitation for amendments gave people the opportunity to rethink ideas about religious liberty and church-state separation. Through the numerous petitions, pamphlets, and letters to newspapers, Americans revealed a keen awareness of past religious persecutions and of the recent advances in religious liberty. These writings also indicate that people believed that religious freedoms were still unfolding and that they were unwilling to be satisfied with what had been achieved to date. The writers appreciated the temporal quality of their situation: they could not presume future conditions but could only try to equip the nation to deal with future threats to liberty.29 As “An Old Whig” wrote: The fact is, that human nature is still the same that ever it was: the fashion indeed changes: but the seeds of superstition, bigotry and enthusiasm, are too deeply implanted in our minds, ever to be eradicated. . . . They are idiots who trust their future security to the whim of the present hour. . . . The more I reflect upon the history of mankind, the more I am disposed to think that it is our duty to secure the essential rights of the people, by every precaution; for not an avenue had been left unguarded, through which oppression could possibly enter in any government. . . . We ought therefore in a bill of rights to secure, in the first place, by the most express stipulation, the sacred rights of conscience.30 Others made express calls for limiting federal power over religious matters. Anti-Federalist Thomas Tredwell told the New York ratification convention: “I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment.” The concern, as essayist “Deliberator” warned in the Philadelphia Freeman’s Journal in February 1788, was that “Congress may, if they shall think it for the ‘general welfare,’ establish uniformity in religion throughout the United States. Such establishments have been thought necessary, and have accordingly taken place in almost all the other countries in the world, and will, no doubt, be thought equally necessary in this.”31 And the writer “Centinel” remarked:

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[B]ut there is no declaration, that all men have a natural and unalienable right to worship Almighty God according to the dictates of their consciences and understanding; and that no man ought, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against his own free will and consent; and that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or any manner controul, the right of conscience in the free exercise of worship.32 Overall, the letters and pamphlets that circulated during 1787–1789 expressed concerns about preserving rights of conscience and preventing government preferences for particular sects, a condition which many felt still existed in several of the states.33 The petitioners universally desired greater security for religious matters, to be achieved in part through greater separation of the religious and governmental realms. The perfect arrangement had yet to be realized, Oliver Wolcott told the Connecticut ratifying convention: Knowledge and liberty are so prevalent in this country, that I do not believe that the United States would ever be disposed to establish one religious sect, and lay all others under legal disabilities. But as we know not what may take place hereafter . . . I cannot think it altogether superfluous to . . . secure . . . us from the possibility of such oppression.34 In the end, a majority of state ratifying conventions (including minority blocks within the conventions) recommended amendments to the federal Constitution to protect religious rights. Every proposal sought to enhance the cause of religious liberty; the primary concerns expressed were to protect freedom of conscience and to guarantee sect equality. The Anti-Federalist minority in Maryland proposed “[t]hat there be no national religion established by law, but that all persons be equally entitled to protection in their religious liberty.” The Maryland proposal might have indicated only a desire to prevent a national church while leaving Maryland’s paper establishment intact.35 Such motivation, however, does not explain the majority of religious proposals, which came from states that already had abolished religious establishments and guaranteed religious conscience in their constitutions (e.g., Virginia, North Carolina, Pennsylvania, New York). These proposals likely indicated a desire to advance those principles at the national level, not to prevent national interference with state establishments. For example, the Virginia convention proposed a federal amendment affirming an “unalienable right to the free exercise of religion

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according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.” North Carolina, also lacking a religious establishment, proposed an amendment that tracked the language of Virginia’s.36 Of the states with active establishments, only the proposal from the New Hampshire convention can arguably be interpreted as expressing a desire to protect existing religious establishments from the federal government. That convention proposed that “Congress shall make no Laws touching Religion, or to infringe the rights of Conscience.” However, there is no legislative history of the New Hampshire proposal to explain whether its language expressed only a national concern or a federalism one, too. The proposal containing the clearest states’ rights motivation came from Pennsylvania, which was undergoing a liberalization in church-state arrangements and wanted to continue with its trend unencumbered by the national government. It proposed that “the United States shall [not] have authority to alter, abrogate, or infringe any part of the constitutions of the several states, which provide for the preservation of liberty in matters of religion.”37 The drafting of the First Amendment must therefore be viewed within the context of this progressive disestablishing trend, one that separated the state from a religious basis and pronounced a minimal governmental role in religious matters. The religion clauses were designed, as one delegate to the New York ratifying convention stated in a call for the amendment, “to secure to us our religious liberties” and to “prevent . . . the federal government from tyrannizing over our consciences by a religious establishment,” not to acknowledge the new government’s reliance on religion.38 The record of the drafting of the First Amendment is sparse, consisting only of the House debates, published in the Annals, and skeletal entries in the Senate Journal. According to the Daily Advertiser, on June 8, 1789, James Madison made a “long and able speech” introducing his promised amendments to the Constitution.39 Madison introduced two amendments, his fourth and fifth, that dealt expressly with religion. The fourth, which would evolve into the First Amendment, was to be inserted into Article I, section 9, of the Constitution and provided: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”40 Madison’s second proposed religious amendment (his fifth overall), to be inserted in Article I, section 10, provided: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”41 Critics of the Everson interpretation of the establishment clause have pointed to the difference between the “fourth” proposed amendment, which

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protects rights of conscience and prohibits a national establishment, and the “fifth” amendment, which restricts state power only with respect to infringements on conscience. This difference proves two things, critic allege. First, the lack of a prohibition on state establishments in the latter amendment indicates that the former was only intended to affect federal actions and leave state establishments inviolate. When this difference is read in conjunction with Madison’s proposal that ultimately became the Tenth Amendment, “it is clear that he concedes to the states power over religious matters which he would deny to the federal Government.” Second, critics argue that Madison more highly valued rights of conscience, which he believed should be protected at both the federal and state levels, than disestablishment, such that noncoercive religious establishments and rights of conscience could coexist.42 An emphasis on the difference between the two proposals proves too much. That Madison understood his first proposal as prohibiting only establishments at the federal level does not mean that he viewed that amendment (which became the First Amendment) or the failed “fifth” as having any role in preserving existing state establishments. The second proposal, which would have restricted state violations of rights of conscience (sans a non-establishment prohibition), is consistent with Madison’s long-standing belief that the Constitution had only limited enumerated powers which did not include the regulation of most state functions, including the existing state establishments. After the Virginia assessment battle, there can be no question that Madison opposed all religious establishments, both general and exclusive, at all levels of government. It is more likely that he believed, based on the trend in the states, that state establishments were dying out and would be eliminated by later state constitutional revisions. During the Virginia ratifying debates, Madison remarked: “Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment—I believe it to be so in the other states.” The battle over the few remaining state establishments was not worth the political capital.43 Second, Madison tied freedom of conscience to disestablishment, as did the religious dissenters in New England. Whether Madison viewed violations of conscience as more troubling than establishments (and thus worthy of universal prohibition) misses the point that he considered violations of religious conscience as a primary attribute of establishments. The fact that Madison believed that rights of conscience encompassed more than notions of nonestablishment (e.g., religious exercise), such that it was important to mention both values, does not mean that he viewed the two concepts as distinct and unrelated. Madison, like the vast majority of early Americans, considered rights of conscience and religious disestablishment to be closely intertwined.

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Perhaps Madison hoped to plant a seed that would grow into universal disestablishment by first requiring a recognized right of conscience at the state level. This interpretation is much more consistent with Madison’s overall vision of church and state than one that suggests a desire to preserve state religious establishments.44 When finally considered by the House on August 15, Madison’s proposed fifth amendment was gone and his fourth amendment (what became the First Amendment) had been revised by a committee to read: “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” During the debate, various members suggested changes to the proposed language, most of which were concerned with phrasing rather than substance. In one substantive proposal, Elbridge Gerry of Massachusetts offered narrowing language: “no religious doctrine shall be established by law.” Such language, if adopted, would have made the federal establishment clause consistent with the existing practice in Massachusetts of multiple, nonpreferential establishments. However, the House did not move on Gerry’s proposal nor on other language that would have narrowed the scope of the clause to prohibiting only the establishment of a “national religion.” Instead, the House adopted the broader language proposed by Samuel Livermore: “congress shall make no laws touching religion, or infringing the rights of conscience.” Under a later motion by Fisher Ames of Massachusetts (possibly at the behest of Madison), the House settled on language reading: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”45 Records of the Senate debates do not exist. All meaning must be gleaned from the various proposals contained in the Senate Journal. Unknown senators offered a handful of proposed substitutes in line with that offered by Elbridge Gerry, which would have limited the breadth of the amendment: preventing establishments only of “one religious sect or society in preference to others,” of “a particular denomination,” or of “articles of faith or a mode of worship.” All of these narrow substitutes were rejected, although the reasons are unknown. On September 9, 1789, the Senate finally adopted language providing: “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion,” language somewhat broader than the other Senate proposals but much narrower than the House version. The author or movant of this final Senate version is unknown, though the language is again reminiscent of Gerry’s more limited proposal in the House.46 The House objected to the Senate’s version and called for a conference committee to resolve the differences on the religion amendment, among others. Madison, Roger Sherman of Connecticut, and John Vining of Delaware represented the House while the Senate appointed Oliver Ellsworth of Connecticut, William Paterson

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of New Jersey, and Charles Carroll of Maryland; however, before the committee met, the Senate “recede[d]” from its language for the First Amendment.47 Out of the committee emerged the familiar language of what would become the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The author of this final language—if one exists, rather than many—is lost to history. However, because the final language more closely tracks the House version (and the Senate had already acceded to the House amendment) and because Madison had expressed dissatisfaction with the Senate changes, it may be assumed that he and the House committee members had greater say in the ultimate phrasing. Significantly, the House objections went to the perceived scope of the Senate version, likely indicating a desire to enact a more encompassing form of disestablishment. Congress’s rejection of the narrower substitutes might also suggest that a majority of the framers agreed that the new national government should have no responsibility for ensuring religious piety.48 As discussed briefly above, some critics of the Everson account offer an alternative interpretation for the significance of the establishment clause. Rather than representing the culmination of disestablishment thought during the founding period, the clause simply reflects a desire to prevent the federal government from interfering in religious matters, including those religious establishments and preferences that existed at the state level. Based on the diversity of opinion about disestablishment and other religious preferences at the time, critics argue that the various political actors “simply could not have agreed on a general principle of governing the relationship of religion and government. . . . What united the representatives of all the states, both in Congress and in the ratifying legislatures, was a much more narrow purpose: to make it plain that Congress was not to legislate on the subject of religion, thereby leaving the matter of church-state relations to the individual states.” Justice Clarence Thomas has picked up this theme, writing that the “text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments [of religion].”49 The historical basis for a federalism interpretation of the establishment clause is grossly overstated. The argument takes an issue of undeniable importance to the drafters and ratifiers of the Bill of Rights and gives it meaning that the framers likely did not intend. That the drafters of the First Amendment were interested in limiting federal power is hardly profound; the overarching purpose of the Bill of Rights was to limit potential federal authority in relation to individual and states’ rights. That consensus on limiting federal power, however, does not lead to the conclusion that the framers thought the establishment clause had no independent, substantive meaning other than federalism

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nor that they intended the clause to protect and preserve the existing state establishments, rather than have them die on their own accord.50 Central to the federalism argument is the fact that seven states maintained religious establishments at the time of the ratification of the Constitution and drafting of the First Amendment. Members of the First Congress from those states would not have agreed to any provision that could have been used to dismantle those existing church-state arrangements. Federalism proponents also point to two statements in the House debate over the religion clauses that suggest that federalism concerns motivated some of the framers of the First Amendment.51 The problem with this interpretation is that it equates all of the various state arrangements with modern conceptions of “establishment” while failing to acknowledge the dynamic change that was under way at the time. As discussed above, even though four of the states—Georgia, Maryland, South Carolina, and Vermont—wrote provisions in their initial constitutions that provided official patronage of or financial support for Christian or Protestant churches, those arrangements had either been abandoned or become moribund by 1789. Even in the three remaining states with assessment systems, the idea of a religious establishment was not particularly popular; opposition to assessments and religious preferences was strong and growing. Officials in Massachusetts, Connecticut, and New Hampshire were increasingly reticent to admit to having establishments due to the negative connotations the term carried, including its association to hated European establishments. While the New England representatives might have had reasons to protect their existing systems against the rising tide, they would have been satisfied that the establishment clause restricted the federal government only—leaving state religious matters to the states—even though it did not express a national commitment to protect and preserve existing state establishments. With the growing identification of establishments as anathema to rights of conscience, no one—in New England or elsewhere—would have been so bold as to argue that a primary purpose of the establishment clause was to preserve those crumbling, discredited institutions.52 Federalism proponents also point to several proposals and statements during the House debate on the religion clauses that purportedly indicate a concern to preserve state religious establishments. In addition to Madison’s initial two proposals (the second one not providing for disestablishment at the state level), proponents note that the House initially adopted language offered by Samuel Livermore of New Hampshire—similar to that proposed by the New Hampshire ratifying convention—that provided: “Congress shall make no laws touching religion, or infringing the rights of conscience.” Livermore proposed

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this phrasing after Benjamin Huntington of Massachusetts had expressed concerns that a broadly worded establishment clause could be interpreted as barring federal courts from enforcing claims for financial obligations in “support of ministers, or building of places of worship.” Huntington stated: The ministers of their congregations to the Eastward [i.e., New England], were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed by the same manner. These things were regulated by bye-laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building places of worship might be construed into a religious establishment.53 Seizing on this statement, Professor Joseph Snee argues that “[u]nderlying the objection expressed by Huntington . . . was doubtless fear that, while the amendment proposed would prevent Congress from establishing a national religion, it did not expressly preclude Congress from forbidding state ‘religious establishments’ of the kind then existing in several states.”54 Snee and other federalism proponents find support for this interpretation in a statement of Peter Sylvester of New York, who said he “had some doubts of the propriety of the mode of expression used in this paragraph; he apprehended that it was liable to a construction different from what had been made by the committee, he feared it might be thought to have a tendency to abolish religion altogether.”55 Considering the final House language in the context of these remarks, “touching” or “respecting” now implies a complete lack of federal authority over religious matters, including those arrangements in operation in the states. Although the word “respecting” was omitted in the final House version and the language was further modified through Senate deliberations, the ultimate version that emerged from the joint conference committee read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” reflecting an apparent victory for those concerned about preserving state establishments.56 Huntington’s statement is the only clear reference to existing state establishments and indicates a concern that the proposed establishment clause could be interpreted to inhibit the operation of state establishments. Although it expresses a federalism concern, it is of a narrow nature—ensuring that federal courts give full faith and credit to state legal obligations—not a more general fear that congressional authority pursuant to the treaty power, the necessary and proper clause, or the tax and spending clauses could be used to

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undermine state establishments. The focus of Huntington’s concern is on the operation of the federal courts, not on potential congressional interference with state assessment systems. His statement calls for protection for state establishments, nonetheless.57 Sylvester’s remarks cannot be so interpreted, however. Sylvester was from New York, where no religious establishment existed, so his concern about “abolishing religion altogether” cannot necessarily be interpreted as fearing the abolition of existing state establishments (i.e., “religion”). Rather, it is more likely he was concerned that a prohibition on religious establishments could be interpreted to forbid government activities such as days of prayer or church incorporations and was therefore “antireligious.” Because Sylvester’s statements are ambiguous with respect to protecting existing state establishments, only Huntington’s can be considered to be pro-federalism.58 Madison responded to Huntington by offering to insert the word “national” in the clause, such that the proposal would read: “no national religion shall be established by law.” Whether Madison saw his new proposal as protecting the existing New England establishments or merely emphasizing the lack of national authority over religion (again, the latter is more likely), the idea was nixed by a hypersensitive Elbridge Gerry, who objected to the notion of declaring a national government, as opposed to a federal one. The remainder of Madison’s response to Huntington, however, indicates that he did not view federalism as an overriding concern. Instead, Madison again offered a substantive interpretation of the proposed clause: “He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform; he thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.”59 In essence, Madison offered a narrow, substantive interpretation of non-establishment in response to Huntington’s concern that the clause could become a weapon for those who “professed no religion at all” and sought to avoid their financial obligations. The purpose of the amendment was to prevent dominance by any one sect or a union of sects, out of concern that they could “compel others to conform” (a reference to rights of conscience), not to cleanse society of all things religious (i.e., “patroniz[ing] those who professed no religion”). Madison, of course, privately believed that multiple establishments also violated rights of conscience, but since Huntington viewed things differently, both could agree that the prevention of sect preference or dominance would protect rights of conscience. But the gist of Madison’s response was to the prevention of sect dominance rather than to the protection of state establishments. Since Madison was the floor manager of the proposed amendment, his perception of the point of contention should be given the

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benefit of the doubt. Madison’s perception is supported by the fact that no other member rose to second Huntington’s federalism concerns. Thus, it is more likely that Madison’s remarks about sect equality reflect the overriding issue of the House debates, which was not federalism.60 At that point, Samuel Livermore of New Hampshire stated that he was not satisfied with the proposed amendment but did not care “to dwell long on the subject.” Livermore then offered the New Hampshire convention’s religious proposal: “congress shall make no laws touching religion, or infringing the rights of conscience.” Coming after Madison’s response to Huntington, Livermore’s proposal could be interpreted as an attempt to address the latter’s federalism concerns. Livermore did not provide an explanation for (nor an interpretation of) his proposal, so it is not clear whether he was responding to Huntington’s states’ rights concern or to the broader substantive statements by other members or merely seeking to move things along by offering his state’s proposal.61 However, both the Daily Advertiser and New-York Daily Gazette quoted Livermore as also stating that, while he believed Madison’s original proposal (“no religion shall be established by law”) and his language meant the same thing, “yet the former might seem to wear an ill face and was subject to misconstruction.” In this light, Livermore’s proposal does not appear to be a substantive alteration to Madison’s language by clarifying the federalism issue but more of a stylistic change. Viewed in its entirety, the House debate does not reveal an overriding interest in preserving state religious establishments under the federal establishment clause.62 Finally, the federalism argument is further undermined when one examines the various state and private petitions for a religious amendment to the Constitution. The majority of calls during ratification centered on protecting rights of conscience and ensuring sect equality, not on securing existing state religious establishments. Only two proposals arguably indicated concerns for protecting existing state establishments from federal interference. As mentioned, New Hampshire, one of the three states with active establishments, proposed that “Congress shall make no Laws touching Religion, or to infringe the rights of Conscience,” language similar to that offered by Samuel Livermore during the House debate. The lack of a legislative history behind the New Hampshire proposal makes it difficult to determine whether its sponsors shared Huntington’s possible federalism concerns. The other federalismsounding proposal came from Pennsylvania, a state without a religious assessment, which called for an amendment to deprive the federal government of authority to “alter, abrogate, or infringe any part of the constitutions of the several states, which provide for the preservation of liberty in matters of religion,” hardly a ringing endorsement of existing religious establishments. All of these

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factors indicate that, when the First Congress convened in 1789 to consider proposed amendments to the Constitution, there was little reason for the representatives to be concerned about preserving state religious establishments against federal meddling. This is particularly true since most observers acknowledged the inconsistency between establishments and liberty of conscience and believed that religious establishments would soon vanish from the American scene.63

The Early National Period, 1788–1795 Despite the movement toward disestablishment and the general consensus about the secular nature of the new governments, notions of a providential hand in the founding of America persisted in the public imagination throughout the early national period. Politicians continued to employ religious rhetoric and act in ways that suggested the government’s reliance on religion, such as appointing chaplains to the First Congress and declaring days of prayer and thanksgiving in times of national difficulty. John Adams, ever willing to attribute national success to the interpositions of Providence, remarked while serving as vice president that the “constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”64 The ubiquity of religious discourse cautions against reading too much into such statements. As historian Gordon Wood has shown, the founders were bound by their own rhetoric and the limitations of their times, which often prevented them from realizing the implications of the popular government they were creating. Just as the founders were able to speak in terms of freedom and equality while institutionalizing slavery and restricting suffrage, they also continued to employ religious imagery while separating religion from government.65 George Washington revealed the ease with which religious discourse entered into official pronouncements by stating in his first inaugural address that “it would be peculiarly improper to omit, in this first official act, my fervent supplications to that Almighty Being, who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect.” Yet, while asking the “great Author” to consecrate “the liberties and happiness of the people of the United States,” Washington noted that the new government was “instituted by themselves” and not from some higher source.66 In another example of how the founders employed religious rhetoric while adhering to Enlightenment principles, a group of New England Presbyterians wrote to Washington in 1789 expressing their concerns about the new Constitution. While applauding the document’s prohibition against religious

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tests—“that grand engine of persecution in every tyrant’s hand”—the Presbyterians expressed alarm over the Constitution’s lack of religious foundation. “We should not have been alone in rejoycing to have seen some explicit acknowledgment of the only true God and Jesus Christ, whom he hath sent inserted somewhere in the Magna Charta of our country.” Washington’s reply was gracious but unequivocal as to his views on the subject. “[Y]ou will permit me to observe that the path of true piety is so plain as to require but little political direction—To this consideration we ought to ascribe the absence of any regulation, respecting religion, from the Magna Charta of our country.” In other correspondence to religious leaders, Washington reiterated his view that the new government was secular in orientation and agnostic toward any religious faith.67 “All possess alike liberty of conscience and immunities of citizenship,” Washington wrote to the Jewish synagogue in Newport, Rhode Island, in 1790. “It is now no more that toleration is spoken of as if it was by the indulgence of one class of people.” And Washington assured Virginia Baptists that he would not have signed the Constitution had there been the “slightest apprehension” that it would “endanger the religious rights of any ecclesiastical body,” adding that, under the government, every man was “accountable to God alone for his religious opinions.”68 Belief in divine favor in the founding of the nation was not the same thing as a belief that the republic received its authority from God. Politicians and clergy alike could believe in varying degrees of God’s providence and still maintain that the nation was founded on reason and the laws of nature. Apparent inconsistencies in rhetoric aside, the founders knew they were creating a nation based on secular principles. A good illustration of this tension between rhetoric and reality is found in the Northwest Ordinance of 1787, passed by the Confederation Congress and reaffirmed by the First Congress in 1791. Some scholars have argued that language contained in the third article of the ordinance—“Religion, Morality and knowledge [being] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”— indicates that Congress believed that government relied on and was partially responsible for religion. However, this language must be read within the context of earlier versions of the ordinance, especially the failed 1785 proposal, which would have provided actual land grants “for the support of religion.” Despite the efforts of pro-establishment members from New England, Congress rejected both the public support of religion and language encouraging “institutions for the promotion of religion,” settling on the ultimate hortatory phraseology.69 James Madison saw the attempted land grants as akin to a religious establishment. In a 1785 letter to James Monroe, Madison wrote that he was glad that

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Congress had expunged a clause contained in the first for setting apart a district of land in each township for supporting the Religion of the majority of inhabitants. How a regulation so unjust in itself, so foreign to the Authority of Congress, so hurtful to the sale of public lands, and smelling so strongly of antiquated Bigotry could have received the countenance of a Committee [is] truly [a] matter of astonishment. The final language was likely included in the ordinance to placate the traditionalists, but it was a far cry from express language encouraging and supporting religion. Most likely, the compromise language acknowledging the importance of religion, morality, and education for government bothered few members, especially in light of the religious rhetoric common at that time. But the rhetoric had its limits, and Congress was unwilling to place any substance behind the language of the ordinance. Viewed in this context, the Northwest Ordinance illustrates the progression of separationist thought during the period—away from the financial and symbolic support of religion—rather than being an endorsement of religion that undermines the Everson interpretation.70 Further evidence that the Constitution and government were generally viewed as resting on secular principles is revealed in sermons by leading clergy who embraced the document for its “rational, equitable, and liberal principles.” The Reverend Enos Hitchcock in a 1793 Fourth of July sermon applauded that the nation had “a constitution of civil government formed under the influence of reason and philanthropy.” The model for Hitchcock was not Israel but the secular republics of Athens and Rome.71 This does not mean that religious leaders avoided using religious rhetoric when describing the new nation. For some clergy, the new government took on an almost sacred quality. In an election sermon preached at Concord, New Hampshire, on June 5, 1788, the Reverend Samuel Langdon described the establishment of the nation as the “signal interposition . . . of divine providence,” while he referred to the new federal Constitution as a “heavenly charter of liberties.” Langdon told the assembled legislators: That as God in the course of his kind providence hath given you an excellent constitution of government, founded on the most rational, equitable, and liberal principles by which all that liberty is secured which a people can reasonably claim . . . we cannot but acknowledge that God hath graciously patronized our cause and taken us under his special care, as he did his ancient covenant people.72 Even Baptist-turned-Universalist minister Elhanan Winchester exulted that the success of the nation and new Constitution revealed that “nothing less than a

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very special Providence, and divine interference could have brought it about.” Considering the prevalence of religious rhetoric at the time, such hortatory statements are hardly surprising.73 Still, even in the heady days following the formation of the new government, the sanctifying of the Constitution and nation had its limits. At a fundamental level, even orthodox clergy recognized the secular foundations of the new government. Having witnessed the tumultuous period of revolution and nation building that had involved the conflation of often divergent streams of thought, orthodox clergy well understood the various forces that had brought about the new government. At times, orthodox clergy spoke in contradictory terms, employing both religious and secular themes; in other instances, their language suggested that they viewed the competing theories of government as complementary. In the same address to the New Hampshire General Court, Langdon saw no inconsistency in asserting “that God hath given us our government” while also affirming that the government was “founded on the most rational, equitable and liberal [of ] principles.” “The power in all our republics is acknowledged to originate in the people,” Langdon declared. A similar view of the Constitution as both inspired and secular was expressed by New York divine Samuel Miller in a 1793 Fourth of July sermon, where he insisted that divine Providence had led the nation to the “frame of a constitution, which recognizes the natural and unalienable rights of man.”74 A 1791 Fourth of July sermon by Dutch Reformed minister William Linn shows the ability of clergy to distinguish between the nation’s providential and secular qualities. Linn commented on the favored status of the nation, noting how God was responsible for the victory of the Revolution and for the peaceful transition to constitutional government. In characteristically Calvinist form, Linn analogized the confederation of the states to the tribes of Old Testament Israel. Yet despite such divine associations, Linn asserted that the foundations of the new government were secular. The authority for the Constitution was based on the “representation of the people from whom all legitimate government is derived.” This frame was contrasted to “[t]he government which Jesus Christ hath instituted in his Church [which] is distinct from the power which appertains to the kingdoms of this world.” Like other clergy of the era, Linn viewed the religious and secular influences behind the Constitution as primarily complementary, not contradictory. Despite their belief in the role of providence in bringing about the new nation, most orthodox clergy recognized that the ultimate source of authority for the new government rested with the people.75 Orthodox clergy were additionally hesitant to assign sacred qualities to the government based on their experience resisting the Crown and Parliament. Government may “be considered, as having its origin, primarily, in the vices of

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man,” wrote Middlebury College president Jeremiah Atwater in 1801. “If all men were virtuous, there would be little need for it.” As a result, civil government was designed “and is absolutely necessary for men on earth, in their present state of degeneracy,” declared Timothy Stone in a 1792 Connecticut election sermon. Only God’s holy government was perfect; all earthly governments were imperfect and transitory. “Christianity, indeed, authorizes no particular form of government in preference to another,” claimed Boston’s Samuel Kendal in 1804. Because all civil governments were inherently imperfect, Atwater, Stone, Kendal, and other orthodox clergy questioned whether any form, including republics, could exist for long. In fact, as the examples of Athens and Rome showed, republics were particularly susceptible to corruption and, without virtue based on God’s ordinances, would likely suffer the same fate as those nations. This negative view of government fit with the Calvinist jeremiad tradition, under which clergy perceived their role as pointing out the transgressions of those in authority and calling them to accountability according to God’s mandates.76 Accordingly, regardless of the perspective, whether Federalist or AntiFederalist, deist or Calvinist, hopeful or pessimistic, most observers acknowledged the secular foundations and purpose of the Constitution and new government. Enlightenment notions of natural rights and a limited secular state, bereft of any religious authority or concern, inspired the founders. As John Adams remarked, the new nation was “founded on the natural authority of the people alone.” The “only moral foundation” for the new government was “the consent of the people.” Occasional reliance on religious rhetoric did not change this perspective, which generally prevailed through the first decade of the next century.77 By the last decade of the eighteenth century, America had undergone a monumental change in church-state relations. All but three states had abolished religious assessments, compared to nine colonies that had maintained them only fifteen years earlier. In those states with religious assessments, supporters were on the defensive, frequently denying they maintained an establishment. By 1790, religious establishments in America were all but discredited. Universalist minister Elhanan Winchester summed up the general disdain for the practice: Religious establishments . . . cause people to become hypocrites, in other places they cause many to dissent. They raise envy, strife, contempt, hatred, wrath, and every evil work; give occasion to reproach christianity and its author; rob the church of its life, power, love, and purity; darken, debase, and obscure its doctrines; pervert, corrupt and change its institutions.78

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While all states maintained other disqualifications and requirements based on religion—religious tests for office holding and voting, oath requirements, Sabbath laws—and supported public acknowledgments of religion, those actions must be compared to the prior situation. In enacting test oaths, most states liberalized earlier requirements, with some moving quickly to abolish all such disqualifications. These changes reflect a significant attitudinal shift away from a standard of religious toleration of dissenting sects toward a regime of equality, at least in theory. But even if not effective in practice, the shift to viewing equality as the benchmark was significant. Accordingly, in assessing the significance of the transition, one should not view the glass as half-empty by comparing the retained religious practices to twenty-first-century notions of religious equality. The changes that had occurred over a relatively short period were truly monumental. It is equally wrong to view the era or the ideals it fostered as static. The framers viewed liberty as an evolving concept. There is no reason to believe they viewed religious liberty and church-state separation any differently. What emerged from the period was a regime of political disestablishment, not one of greater engagement. The years 1775–1790 represent the first disestablishment. A more complete, second disestablishment—one involving the nation’s legal and social institutions—would take another century to achieve.

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PART II

The Antebellum Settlement

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3 Resistance and Revisionism

Civil Government is a Divine Ordinance. —Lyman Beecher, “The Remedy for Duelling” (1806) As the United States entered the closing years of the eighteenth century, the momentum toward disestablishment and greater religious equality appeared unstoppable. The reversal of events was truly phenomenal: in 1775, nine of thirteen colonies had maintained religious establishments with assessment systems and legal preferences based on religious affiliation. Only fifteen years later, a majority of states (eleven of fourteen) had either abolished religious assessments or failed to adopt legal mechanisms necessary for their operation, causing the practice to die out. Although establishments with their mandatory assessments and religious preferences had not worked well in the more religiously indifferent and pluralistic colonies (e.g., New York and North Carolina), the mere symbolism of governments existing independent of religious authority was highly significant on its own. But more significant, the legislatures of five states—Georgia, Maryland, South Carolina, Vermont, and Virginia— had begun the revolutionary period by retaining versions of their colonial assessment systems but had acquiesced to the rising tide of opposition espousing the revolutionary ideals of religious equality, freedom of conscience, and ecclesiastical independence.

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Not only was financial disestablishment the prevailing trend, but movement toward greater political disestablishment was also under way. Religious tests for public office holding were increasingly under fire as remnants of religious inequality perpetuated by the Test and Corporation Acts. In the fifteen years between revolution and ratification, several states liberalized earlier religious disqualifications for public office, voting, and oath taking, requisites which had affected the political standing of people based on their religious affiliation. That the new states had not abolished all religious disqualifications should not obscure the progress that had been made. The changes were not lost on contemporaries. In 1780, Benjamin Franklin responded to a letter from Richard Price where the latter criticized the retention of religious tests in the new Massachusetts Constitution. The gracious Franklin concurred in Price’s disdain for the practice but reminded him of the “great lengths in liberality of sentiment on religious subjects” that had transpired in recent years. And when Pennsylvania reformed its test law in 1786, removing a requirement that officeholders acknowledge that the scriptures were given “by Divine inspiration”—a provision that excluded Jews and deists—Benjamin Rush effused that this “success of the friends of humanity” should “encourage them to persevere in their attempts to enlighten and reform the world.” Even though Pennsylvania retained a requirement that public officials “acknowledge the being of God, and a future state of rewards and punishments,”1 Noah Webster predicted that the revision was merely “a prelude to wiser measures; people are just awakening from delusion. The time will come (and may the day be near!) when all test laws, oaths of allegiance, abjuration, and partial exclusions from civil offices will be proscribed from this land of freedom.”2 To most observers, the changes were a welcome sign of the remarkable progress in the furtherance of republican and disestablishment principles. Another indication of the disestablishment trend was the increasing consensus over the ideological basis for the federal and state governments. As discussed in the previous chapters, Enlightenment theories dominated attitudes about the authority and justifications for republican government. Federalists and Anti-Federalists alike recognized the significance of a federal ban on religious tests for office holding as indicating that one’s religious affiliation or beliefs had no relevance in a republic. Attitudes at the state level were similar. In his study of religious liberty in Pennsylvania, J. William Frost has noted that the 1790 Pennsylvania Constitution, unlike its 1776 predecessor, “did not ground the existence of natural rights nor the validity of a republican form of government in the being or providence of God.” Republican government was founded on “rational, equitable and liberal” enlightened principles, not on biblical principles; government was not a covenant with God but was based on the consent of the people, from whom all authority was derived.3

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Legislators, politicians, citizens, and most clergy concurred as to the secular character of the new governments. Even orthodox clergy, who as the 1790s progressed would become increasingly pessimistic about the future of the nation, readily distinguished the authority for the new governments from God’s kingdom. Congregationalist minister Timothy Stone wrote in 1792 that civil government and “the restraint of law” were necessary because people had rebelled against the “holy and perfect government of JEHOVAH.” For Stone and other pessimists, the authority for civil government had its “foundation in compacts” and not in the intervention of God. But even those clergy who saw the unmistakable hand of God in the creation of the nation acknowledged that the authority for its new government came from the people, based on the “natural and unalienable rights of men.” “God has not seen fit, under the gospel dispensation, to institute any particular form of civil government,” declared Nathanael Emmons.4 This momentum toward a more complete disestablishment—not merely political but legal, institutional, and cultural as well—would stall once the nation entered the nineteenth century. As the euphoria of the founding period gave way to the realities of governing the new nation, pessimism set in. Financial troubles, international intrigue, the advent of political partisanship, and the threat of social upheaval exemplified by the Whiskey Rebellion led many orthodox Protestants to withdraw their endorsement of the government and adopt a more prophetic outlook. Whereas only a decade earlier, few orthodox clergy had been troubled by the nation’s secular character, by the late 1790s that failing took on new significance; like the people of the Bible, Americans had received the blessings of the Almighty but had failed to keep the covenant by not acknowledging the authority of God. Orthodox Protestants also viewed with growing alarm the antireligious excesses of the French Revolution (being extended throughout the world by the so-called Bavarian Illuminati) and saw domestic parallels in the deism, rationalism, and Freemasonry popular in early America. These concerns would first lead orthodox clergy to condemn the new government; only later would these concerns evolve into efforts to rediscover if not recreate a Christian basis for the nation.5 This emerging jeremiad would coincide with an upsurge in religious piety and enthusiasm in the early nineteenth century, fueled in part by the evangelical revivals of the Second Great Awakening. With faith being more central in their lives, people wanted religious values to be reflected in their communities and the larger culture while they yearned for certainty that God sanctioned the new nation. There was no going back on political disestablishment: the explosion of new denominations and the evangelical emphasis on voluntarism meant that a return to state-supported religion was impossible. However, orthodox and

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evangelical Protestants could create an informal establishment where the state encouraged and supported universal religious (i.e., Protestant) principles. Orthodox and evangelical Protestants would encourage the enforcement of religiously based behavioral and Sabbath laws and oath requirements. To support these legal structures, they would turn to reform and voluntary societies to perfect a de facto Christian America.6 The ultimate result of these events would be to stall the disestablishment trend. Political disestablishment, to an extent, had been achieved, but disestablishment of the nation’s culture and institutions was forestalled. The first step in halting this trend would be a reevaluation of the founding through millennial and apocalyptic lenses. This historical revision would lead to sanctifying the founding, its documents, and its leaders. The sanctifying of the new nation and the Constitution came about slowly and only as a result of several factors. This first step occurred when clergy who had earlier embraced the new Constitution began criticizing its irreligious character and calling for national reconciliation. Only later, when the nation and its people were redeemed through a second war with Great Britain, would America emerge sanctified as a Christian nation.

The Spiritual Crisis of the National Period No sooner had the national government been formed under the Constitution and Bill of Rights than problems began to materialize. Economic and social troubles exacerbated the political growing pains of the new federal and state governments. During what many historians refer to as the “critical period,” the euphoria surrounding the Revolution and the creation of the Constitution gave way to the realities of governing. Orthodox clergy, already predisposed to millennial and apocalyptic thought, were the first to seize this new pessimism. The clergy had never abandoned their dualistic paradigms of good battling evil, with God’s kingdom eventually prevailing over Satan. During the war, that paradigm fit nicely with the patriots’ cause, particularly when Republican/Whig terminology and Calvinist vocabulary merged into a unified language.7 Orthodox clergy had also retained their belief in the importance of moral virtue for the success of republican government. “Virtue is highly necessary for the support of order and good government,” asserted the Reverend William Linn in 1791, a perspective that the Reverend David Tappan echoed the following year: “Virtue enlightened and invigorated by political and christian knowledge, is eminently the soul of the republic.” Again, during the war, this belief had found common ground with rationalists who had painted their cause as virtuous even

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though the latter believed that virtue was an unreliable check on the passions of a free people. Following the Revolution, ratification, and the rise of economic and political turmoil, latent divisions between the orthodox Calvinists and their rationalist partners became more pronounced. Orthodox clergy reemphasized the importance of virtue to ward off moral decline and discord, while rationalists saw security in a divided and limited political authority and a system of checks and balances. Attributing the nation’s growing problems to a lack of virtue, the clergy’s millennial thought became more apocalyptic and pessimistic. “In the midst of all our publick happiness,” warned Yale divinity professor Samuel Wales in 1785, “dangers surround us and evils hang over our heads.”8 This pessimistic view of the new nation is evident in the apocalyptic sermons of the Reverend John Mason, a Presbyterian minister from New York City. In 1793, Mason delivered a sermon titled “Divine Judgments” that called for public prayer and humility in response to the yellow fever epidemic ravaging the eastern seaboard. The epidemic indicated God’s displeasure with the nation’s many failings: “Jehovah has a controversy with America,” Mason insisted. Even though God had led the nation to victory in war, “once our enemies were gone, we neglected the God of our deliverance.” Mason was vague as to the larger transgressions, though he provided a few smaller examples: the oath had “fallen almost into contempt, from the irreverent manner in which it is both administered and taken”; God’s name was “wantonly and outrageously blasphemed”; and the Sabbath was ignored. But Mason had a particular complaint that related to the government itself: There is no nation under heaven for which God hath done so much in so short a time, as he hath done for America. . . . And yet that very constitution which the singular goodness of God enabled us to establish, does not so much as recognize his being! . . . [F]rom the constitution of the United States, it is impossible to ascertain what God we worship; or whether we own a God at all. . . . Should the citizens of America be as irreligious as her constitution, we will have reason to tremble lest the Governor of the universe, who will not be treated with indignity by a people . . . overturn, from its foundation, the fabric we have been rearing, and crush us to atoms in the wreak.9 For Mason and his fellow pessimists, the secular character of the new government was not in doubt; on the contrary, it was one of the nation’s greater collective failings. No event better galvanized orthodox clergy, or confirmed their dire predictions of moral decline, than the French Revolution and its perceived threat to U.S. society. Americans followed the unfolding events in France with rapt

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attention. During the early years of the French Revolution, most clergy shared the public’s generally optimistic view of the event’s possibilities. Congregationalist divines David Tappan, Enos Hitchcock, and Jedidiah Morse and Yale’s Ezra Stiles initially viewed the French Revolution as an extension of the American Revolution, securing greater virtue and liberty, including religious liberty, in Europe. France had “burst the chains of civil and ecclesiastical tyranny,” exulted Morse in a 1795 sermon. Hitchcock agreed that Americans should “warmly wish success to the great principles of the French revolution—principles founded on the equal liberty of all men, and the empire of the laws. As rational beings, and as Christians, we should recollect, that from partial evil, [the revolution] is the glory of the Supreme Ruler to bring forth general good.”10 Even as the French Revolution began to implode, orthodox clergy remained unconcerned about the anticlericalism (at least in its anti-Catholic form) and the violent actions of the Committee of Public Safety. France’s rejection of Christianity “is less to be wondered at, when we consider, in how unamiable and disgusting a point of view it has been there exhibited, under the hierarchy of Rome,” wrote Morse in February 1795. Morse and other American clergy believed that when “peace and a free government shall be established, and the people have liberty and leisure to examine for themselves, . . . the effusions of the Holy Spirit [would bring about] a glorious revival and prevalence of pure, unadulterated Christianity.”11 Attitudes changed, at least among Federalists and orthodox clergy, when French anticlericalism expanded to a general attack on Christianity and the terror became more indiscriminate. Only a year after Hitchcock’s sermon, Noah Webster warned that the Jacobins were “atheistical,” waging “an inveterate war on christianity” through their seizing of churches and the abolition of the Sabbath, all in the name of rationalism. To the now-chastened American clergy, the French Revolution demonstrated how republican and rationalist principles were unable to control discord and degeneration in the absence of religious virtue.12 Gary Nash argues that orthodox clergy turned against the French Revolution only when they sensed that Americans were attracted to the radical egalitarianism and irreligious principles themselves. Homegrown disbelief and deism had been around for many years, fueled by rationalism and the disruption of the American Revolution. As some scholars have documented, church attendance during the founding period was at an all-time low. Though troubling to orthodox clergy at the time, the disbelief of the 1770s–1780s was not particularly overt or challenging of established religious structures. A majority of deist-leaning political leaders, including Franklin, Washington, and Jefferson, attended religious services, and most—Jefferson being the

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primary exception—professed fealty to Protestant doctrines.13 By the 1790s, however, deism and religious skepticism in America were feared to be on the rise, fueled by books like Ethan Allen’s Reason, the Only Oracle of Man (1784) and Thomas Paine’s highly popular The Age of Reason (1794). As early as 1793, Presbyterian John Mason laid blame for the nation’s woes on the popularity of religious liberalism and skepticism: “Is not infidelity the fashion? Is not the profession of a Christian thought to degrade the dignity of a gentleman? Is not the bold blasphemer of the holy oracles admired by many as a man of genius?”14 The excesses of the French Revolution stripped the remaining veneer off the threats represented by deism and skepticism. In a November 1794 sermon at the close of the Whiskey Rebellion, David Osgood of Massachusetts bemoaned that, in their enthusiasm for the French Revolution, Americans were embracing many of the same, extreme democratic and irreligious tendencies as the French. The emergence of “Atheistical infidelity and irreligion” in America was “probably but the poisonous fruits of our alliance and intimate intercourse with the French nation,” Jedidiah Morse charged in 1798. “[O]ur Constitution has been endangered by the spread of infidel and atheistical principles, in all part[s] of the country. . . . Truly alarming has been the increase of such principles within a few years past.”15 Class issues and the threat of social leveling, fueled by revolutionary egalitarianism, were also part of the mix. Although many of the nation’s elites privately embraced deism, The Age of Reason and other works popularized irreligion among the laboring and working classes, which often expressed it in more militant forms. Deistic and infidel societies sprang up in many cities, spurred on by the blind Elihu Palmer, publisher of the Temple of Reason, who traveled the eastern seaboard lecturing on religious skepticism and free thought. Skepticism also made inroads into America’s early colleges. Even at orthodox Yale, “most students were skeptical,” wrote Lyman Beecher of his student year of 1795. “That was the day of the infidelity of the Tom Paine school. Boys that dressed flax in the barn, as I used to, read Tom Paine and believed him; I read and fought him all the way.” Orthodox clergy saw attacks on Christianity from all sides.16 The foreign and domestic threats became more real with the revelations about the XYZ Affair and the Bavarian Illuminati, the latter an enigmatic secret society reputedly bent on destroying Christianity. The Illuminati, with their atheistic or deistic and Masonic connections in America (increasingly associated with the emerging Jeffersonian Republicans), were “inundat[ing] the country with books replete with infidelity, irreligion, immorality, and obscenity.” They sought nothing less than “the overthrow of religion, government, and human society civil and domestic,” wrote Yale president Timothy

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Dwight in his widely circulated sermon “The Duty of Americans, at the Present Crisis.” “If our religion were gone, our state of society would perish with it,” Dwight declared, “and nothing would be left, which would be worth defending.” These threats, real and imagined, only increased the clergy’s apocalyptic outlook, further eroding confidence in America’s constitutional system as a safeguard.17 This increasingly negative view of the nation’s religious character was particularly evident during Thomas Jefferson’s presidential bid in 1800. Orthodox clergy, including Timothy Dwight and John Mason, actively opposed Jefferson’s candidacy, proclaiming that his “infidel” beliefs would reflect on the nation as a whole and invite God’s wrath. In “The Voice of Warning” (1800), Mason charged that Jefferson’s writings insulted the Bible and called for a “civil society as founded on Atheism.” A Jeffersonian administration promised “a government administered without any religious principles” and would indicate a national “disregard to the religion of Jesus Christ.”18 Mason was joined by Dutch Reformed minister William Linn, who only nine years earlier had embraced the secular nature of the government. Now, he feared for the irreligious character of the nation under Jefferson’s leadership. In a widely circulated pamphlet, Linn attacked Jefferson’s statements from his Notes on the State of Virginia, where the latter reputedly disputed the necessity of religion for democratic government. “If there be no God, there is no law; [and] no future account,” Linn wrote. “[G]overnment then is an ordinance of man only, and we cannot be subject for conscience[’s] sake.” The issue of whether the nation had a religious or secular character, apparently unimportant ten years earlier, was now of utmost consequence with the prospect of “a manifest enemy of the religion of Christ” at the helm. The election of an infidel like Jefferson “would be an awful symptom of the degeneracy of that nation, and . . . a rebellion against God.”19 One fact upon which orthodox Christians seized during the election and afterward was the lack of an acknowledgment of God in the federal Constitution. The absence of a reference to a deity had elicited minor criticism during ratification, but with matters now deteriorating, the omission grew in significance. Calvinist clergy, with their covenantal heritage, were particularly troubled by the lack of an acknowledgment, which came to represent a national rejection of God’s authority. In his attack on Jefferson’s candidacy, John Mason restated his earlier lament that the “Federal Constitution makes no acknowledgement of that God who gave us our national existence.” In “the pride of our citizenship,” Mason declared, the founders had “forgotten our Christianity.” Mason was not alone in his criticism. In an 1803 sermon, Reformed Presbyterian minister Samuel Brown Wylie derided the Constitution for “not even

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recogniz[ing] the existence of God, the King of nations.” Wylie interpreted the omission as a purposeful affront to the Almighty: the framers had acted “as if there had been no divine revelation of the supreme standard of their conduct [and] as if there had been no God.” The nation had thus “rebelled against God” by refusing to recognize divine law and by allowing “Deists, even atheists, [to] be the chief magistrate[s].” The “only way to wipe off the reproach of irreligion, and to avert the descending vengeance,” Mason echoed, was “to prove, by our national acts, that the Constitution had not, in this instance, done justice to public sentiment.”20 Criticism of the nation’s irreligious character continued after Jefferson’s presidency. The Reverend Samuel Austin, president of the University of Vermont, expressed a view similar to those of Mason and Wylie in an 1811 fast day sermon. The Constitution had “one capital defect” which would “issue inevitably in its destruction,” Austin maintained. “It is entirely disconnected from Christianity. It is not founded upon the Christian religion. Its object is not, more or less, to subserve it. It is therefore, I am constrained to say it, an unchristian government.”21 With the advent of the War of 1812, feelings only intensified that the nation was being held accountable for having turned its back on God in its constitutional formation. On one level, New England clergy willingly parroted the Federalist Party’s opposition to “Mr. Madison’s war.” Orthodox Protestants—and, to a lesser extent, evangelicals—had associated themselves with conservative Federalist policies ever since the 1800 election and Alexander Hamilton’s politically transparent recommendation in 1802 to create a “Christian Constitutional Society.”22 But some clergy also expressed genuine theological concerns about the war. Yale’s Timothy Dwight attributed the war in part to the lack of an express religious acknowledgment, which indicated “the sinful character of the nation” and the “wickedness of the land.” “We formed our Constitution without any acknowledgment of God; without any recognition of his mercies to us, as a people, of his government, or even of his existence,” Dwight wrote in 1813. “Thus we commenced our national existence under the present system, without God.”23 New England divine Chauncey Lee, also writing during the war, placed similar blame for the nation’s woes on the government’s irreligious foundations: Can we pause, and reflect for a moment, without the mingled emotions of wonder and regret; that that publick instrument, which guarantees our political rights of freedom and independence—our Constitution of national government, framed by such an august, learned and able body of men . . . has not the impress of religion

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upon it, not the smallest recognition of the government, or the being of GOD, or of the dependence and accountability of man. Be astonished, O earth!—Nothing, by which a foreigner might with certainty decide, whether we believe in the one true God, or in any God; [or] whether we are a nation of Christians.24 These sermons and writings of the period highlight the extent to which the national government was viewed as having a secular foundation, albeit one that religious conservatives increasingly lamented and scorned. During the drafting and ratification of the Constitution, the clergy, among others, had acknowledged that the government was founded on secular, rational principles, although possibly benefiting from the guiding hand of a distant God. Not until the turmoil of the critical period, however, did orthodox clergy raise arguments that those secular foundations were counter to the laws of God. “Civil government does not, as some modern politicians affirm, originate . . . in the people, as its fountain,” Wylie wrote, but “flows immediately from God the Creator, as the Governor of the Universe.”25 Despite this new critique, orthodox clergy could not agree on whether the irreligious character of the Constitution and its government was imputed to the nation as a whole. Mason, Dwight, and Wylie viewed the nation as sinful in both a collective and an institutional sense. In contrast, William Linn was more guarded in his condemnation of the American people, referring to America as “a Christian nation” while reproving the Constitution’s secular origins and functions. As Kentucky Presbyterian minister James Blythe wrote in 1815, America was “confessedly a christian nation” as reflected in “the faithful and devout bosoms of thousands of christians.” But as a nation, the people had “not acknowledged God the Saviour in all our ways,” especially through the attempt of government to stand “without the aid of religion.” Under either view, the orthodox clergy had taken the first step toward anointing America as a Christian nation by insisting that a secular government was inconsistent with God’s laws. Because God’s laws were unchangeable, interpretations about the nation’s founding and documents would have to change.26 By 1815, therefore, notions of America’s religious character had not evolved into a coherent form. Although most orthodox Protestants still believed in the influence of Providence in the nation’s founding and in America’s role in the coming millennium, neither they nor rationalists attributed divine qualities to the nation’s founding documents or to its system of government. Regardless of whether the nation was viewed as wayward or regenerate, the Constitution was universally seen as a secular document establishing a civil frame of government. In essence, few in this first generation would have viewed America as a

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Christian nation, insofar as that term implied that the government was ordained by or responsible to God or had a duty to advance Christian principles. That perspective would shortly change.27

Sanctifying the Constitution and Creating the Christian-Nation Myth Despite an earlier consensus about the nation’s secular founding, religious perspectives soon converged to fashion the concept of America’s Christian nationhood. Following the retirement of Thomas Jefferson from public life in 1809 and the victory over the British in 1815, popular attitudes toward the government and the founding documents began to shift, spurred in part by a new national optimism that would continue for two decades. The character of the Constitution, which only recently had been viewed as being religiously neutral or even irreligious, was transformed, and the document became sanctified. The lack of a religious affirmation in the document was explained away as an oversight or aberration that had little impact on the nation’s religious foundations or its manifest destiny. The establishment clause was interpreted as preventing only an official ecclesiastical hierarchy or government favoritism of one Protestant denomination over another. Before long, events suggesting a religious basis for the nation’s democratic founding came to overshadow the secular reality. The secular image of the government lost out to a myth that America had been founded as a Christian nation. This transformation in turn significantly impacted popular understandings about the meaning of disestablishment and church-state separation.28 The developing myth of America’s Christian past coincided with and evolved partially out of the popular religious movement commonly referred to as the Second Great Awakening. Beginning in the late 1790s and continuing through the 1830s, this second wave of Protestant revival swept the country, from upstate New York to the upper Midwest to the deep South. Church membership doubled and even tripled in some locations as evangelical enthusiasm took hold of early American culture. Evangelical churches, such as Regular Baptists and New Light Presbyterians, quickly surpassed their more staid brethren in membership. New denominations—Methodists, Disciples of Christ, and Cumberland Presbyterians—grew out of a harsh frontier experience that fostered evangelical fervor. Even the more orthodox Episcopal, Congregational, Presbyterian, and Dutch Reformed churches succumbed to evangelical influences. The vague Calvinistic ethos that had permeated eighteenth-century culture was transformed by its evangelical variant. During this period, evangelical

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Protestantism became the prevailing form of American religion and a dominant force in the nation’s culture.29 According to Robert Baird, a leading church historian of the time, by 1844 approximately 2.5 million Americans were in active communion with an evangelical church, with another 12 million being under the influence of some evangelical body. This totaled 14.5 million adherents out of a national population of 17.5 million. More significant for Baird, most evangelicals were united in basic doctrine and could be viewed “as branches of one great body, even [as] the entire visible church of Christ in this land.” Baird and his contemporaries maintained that the phenomenal growth of evangelicalism during the first half of the nineteenth century was a clear sign of God’s “election” of America and its political system.30 Modern-day scholars believe that such estimates were highly inflated; regular church attendance at its height rarely exceeded 30 percent of the nation’s population and was usually much lower. Nevertheless, the actual numbers were not as important as the perception. The evangelical perspective quickly became a dominant force in antebellum society as it defined people’s conceptions of themselves, their culture, and their communities. In an assessment that is close to the mark, Robert Handy has written that, “[i]n many ways, the middle third of the nineteenth century was more of a ‘Protestant Age’ than was the colonial period with its established churches.”31 Like their Puritan forebears, antebellum evangelicals perpetuated and expanded the belief in the specialness of the American nation and people. The evangelical predisposition to reading scripture typically invited comparisons between Israel and the United States. During the 1790s, the analogy to America was the tribes of Old Testament Israel wandering in the wilderness in rebuke for their sins. “Like Israel,” bemoaned Jedidiah Morse in 1798, “we are in the wilderness. . . . trials and dangers of magnitude await us.”32 Twenty years later, it was the regenerated Israel with its covenantal tradition that served as the model for the new kingdom of God in America. One evangelical minister summarized the perspective by claiming that “America, protestant America, is the ‘Restored Israel of God,’ promised in such glowing terms by the ancient prophets.” This latent Puritan world view led these second-generation evangelicals to place different meanings on the shared events and rhetoric of the revolutionary period so that those events fit within their religious perspective and concern for morality and public virtue.33 Compounding this tendency to read history through lenses of scriptural revisionism was the prevalence of postmillennialism in antebellum evangelical eschatology. The postmillennial view holds that the second coming of Jesus Christ will be preceded by a thousand-year golden age on earth. The postmillennialist idea of progress quickly joined with notions of the nation’s

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special calling to forge a belief that America would become the kingdom of God on earth. Only in a Christian America would the reality of God’s kingdom be made known, to be followed by the second coming of Jesus Christ. This notion that society was, in a sense, perfectible through Christian action went hand in hand with the image of America as the new Israel.34 Despite their growing cultural dominance, evangelicals were far from complacent. Many people, particularly newer immigrants and those native-born on the rapidly expanding frontier, had to be brought to Christ. Laws and cultural norms that reinforced a Protestant culture needed to be strengthened and enforced. Other challenges existed. The threats of infidelity and radicalism, both French-bred and homegrown, were only in the recent past and would resurface during the 1830s. The religious experimentalism that spawned the revivals also encouraged variant forms of religious belief, including Mormonism, Shakerism, transcendentalism, and spiritualism, as well as less religious forms of expression, such as mesmerism, free thought, and utopian socialism.35 As they competed for adherents in the “antebellum spiritual hothouse,” to use Jon Butler’s rich phrase, all of the new religious movements laid claim to the transcendental truth, something that had heretofore been the purview of the established churches. Orthodox and evangelical leaders quickly realized that they could not sit back and assume that they would retain their status as leaders of the cultural ethos and keepers of the religious truth. They also recognized that they could not leave the earthly perfection of God’s kingdom to chance.36 In response to the growing religious pluralism and the absence of a spiritual order created by disestablishment, orthodox and evangelical leaders called for voluntary societies and associations to achieve the realization of a Christian America. Some of the reform efforts were directed at addressing specific social problems brought on by urbanization and industrialization while others concentrated on counteracting the perceived “moral declension” that stood in the way of the spiritual perfection of society. In the process, evangelicals reinterpreted the understanding of disestablishment, viewing its constraints only in a formal political sense: prohibiting official favoritism of one Protestant denomination while preventing government regulation of church doctrines and practices. Such structural disestablishment fit comfortably with the evangelical emphasis on a personal and freely given conversion experience. As Robert Handy has argued, antebellum evangelicals believed that establishment systems had proved to be counterproductive in leading people to Jesus Christ: Indeed, it was widely asserted that now that civilization in America had been freed of the corruptions of established ecclesiasticism, it

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could become more Christian than it had ever been. Churches had been disestablished and separated from the state, but the idea of a Christian society certainly had not disappeared. True Christian churches (i.e., evangelical Protestant churches) and Christian civilization with its developing patterns of freedom and democracy would go on from strength to strength together, mutually reinforcing one another.37 A voluntary approach, both within churches and through external religious associations, would be more successful in realizing a Christian civilization than the colonial establishments had been. But the government still had a role in facilitating that goal. No evangelical leader was more responsible for the creation of moral reform societies or for tying the immediate aims of temperance and Sabbath observance to a godly society than Lyman Beecher, a leader of the Connecticut Standing Order. As early as 1803, Beecher had thrown down the gauntlet in a sermon entitled “The Practicability of Suppressing Vice, by Means of Societies Instituted for That Purpose.” Beecher saw the entire success of America as dependent on its connection with Christianity. “Civil government is a divine ordinance,” Beecher wrote. “On this firm basis, [the framers] founded our liberty. On this basis, it now rests. Religion is the corner stone; remove it, and the building falls.” Due to a variety of factors, however, “irreligion hath become in all parts of our land, alarmingly prevalent.” Beecher provided a laundry list of problems brought on by the lack of a moral order: “The name of God is blasphemed; the bible is denounced; the sabbath is profaned; the public worship of God is neglected; intemperance hath destroyed its thousands . . . while luxury, with its diversified evils, with a rapidity unparalleled, is spreading in every direction.”38 In order to combat these threats, Beecher urged the “indispensable necessity of executing promptly the laws against immorality.” Yet civil law alone was insufficient to counteract the proliferation of sin and depravity. Beecher encouraged the creation of moral societies to supplement the law through the use of persuasion and shame: “The suppression of vice by means of societies instituted for the purpose, is the most peaceful, and probably the most effectual method that can be devised.” Their tasks would be “[t]o promote vigilance, to hold up the connection between vice and misery, to give correctness and efficacy to public opinion, and to strengthen the sinews of the law.”39 Beecher and his allies thus recognized that, under the new regime of disestablishment, there were limits to how much government could compel people to be godly: To secure then, the execution of the laws against immorality, in a time of prevailing moral declension, an influence is needed, distinct

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from that of the government, independent of popular suffrage, superior in potency to individual efforts, and competent to enlist and preserve the public opinion on the side of law and order.40 But disestablishment did not mean that religion could not influence government actions that promoted morality and virtue while it supplemented government efforts to combat vice and disorder. The voluntary societies would “constitute a sort of moral militia, prepared to act upon every emergency, and repel every encroachment upon the liberties and morals of the State. . . . in a free government, moral suasion and coercion must be united,” Beecher stated. Following the lead of Beecher and others, evangelicals formed a number of voluntary societies during the antebellum period, including the American Bible Society (1816), the American Sunday School Union (1824), the American Tract Society (1825), the American Temperance Society (1826), and the General Union for the Promotion of the Christian Sabbath (1828), all with the goal of perfecting the nation’s status as a Christian nation while encouraging the increased enforcement of laws promoting morality and public virtue.41 At the same time, orthodox and evangelical Protestants did not view the political disestablishment as barring government officials from doing their part to further general Christian principles whenever possible. According to historian James Maclear, even after disestablishment in Connecticut in 1818, Lyman Beecher continued to “lectur[e] civil magistrates on their duties to the church as if nothing had happened.”42 In 1823, Beecher ally Nathaniel Taylor preached a sermon before the Connecticut legislature, challenging its members: “Why should not legislators, judges, magistrates of every description, with every friend of this country, uphold those institutions which are its strength and its glory? . . . Shall clamors about rights of conscience induce us to throw away Heaven’s richest legacy to earth?” Beecher, Taylor, and others did not seek laws that would effectively reinstate a formal religious establishment. “God forbid,” Taylor told the legislature. “[Y]ou will make sectarians.” Rather, “[w]e only ask for those provisions of law, and that patronage from every member of the community in behalf of a common Christianity, which are its due as a nation’s strength and a nation’s glory.”43 Beecher set out his understanding of the appropriate relationship between church and state in an important sermon preached in Salem, Massachusetts, in 1819, following disestablishment in Connecticut the previous year (an event Beecher had vigorously opposed and only grudgingly accepted). Despite disestablishment, civil government was obligated to assist the efforts of churches to advance Christian principles, Beecher stated:

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It does not appertain to [governments] to impose creeds, or to prescribe ceremonies of worship, or to inflict civil penalties for offenses merely ecclesiastical. Nor is any injurious preference to be given to one denomination above another. To governments appertain, however, the selection and application of the most effectual means of public safety and prosperity. But it is by the moral influence of religious institutions only that civil laws can avail, to form the most perfect state of human society. Civil laws cannot reach the spring of action, and prevent social evils that annoy, or coerce social virtues that enrich society; and religion, by her moral influence alone, cannot arrest the arm of violence, or punish encroachments upon life and property.44 Neither institution alone could perfect the moral betterment of society; rather, the government and churches must maintain a symbiotic relationship, with each body reinforcing the other’s primary functions. While each was separate, both operated under the command of heaven. “It is only by the influence from above, maintained by religious institutions, breathing their benign influence into systems of legislation, and extending their all-pervading efficacy through every relation of social life, that men are qualified and inclined to enjoy the blessing of a free, mild, efficient government.” The role of government was not to legislate on religion (although laws reinforcing morality were appropriate) but to give “to religious institutions every practicable facility for exerting a vigorous moral influence upon the minds of men.” Beecher believed that this cooperative relationship was not that dissimilar in effect from the formal establishments that had previously existed in Connecticut and New Hampshire.45 In addition to practical measures designed to reinforce America’s Christian nationhood, the evangelical emphasis on the Bible led many to reexamine and embrace earlier claims that the scriptures served as the locus of democratic principles and as the ultimate source for temporal authority. At the turn of the nineteenth century, orthodox clergy had insisted that civil government was “a divine ordinance,” a connection the framers of the Constitution had spurned. The second generation of evangelicals transformed that general belief into an express understanding about the basis for America’s constitutional structure. Delving into their covenantal heritage, evangelicals developed “powerful Christian explanations” for the foundations of constitutional government, sometimes even insisting that the Constitution was divinely inspired instead of representing a social compact based on the consent of the people. Focusing on the purported providential nature of the nation’s founding and on particular statements by the founders, such as Washington’s Farewell Address, evangelicals created a convincing account to fit within their religious world view.46 Speaking during

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the 1820s, Lyman Beecher shamelessly declared: “our own republic, in its constitution and laws, is of heavenly origin. It was not borrowed from Greece or Rome, but from the Bible. . . . It was God that gave these elementary principles to our forefathers as the ‘pillar of fire by night, and the clouds by day,’ for their guidance.” Other evangelicals insisted that the American republican system was based on the model of Old Testament Israel, which had also been a “confederation of independent States, [with] each tribe retaining its separate sovereignty, yet all combined for general purposes in the United States of Israel.”47 One of the earlier reinterpretations of the nation’s founding involved a popular account of God’s influence on the Constitutional Convention. In 1826, Jonathan D. Steele published a letter from his father, William Steele, which related a ten-year-old conversation between the older Steele and General Jonathan Dayton, one of the delegates to the 1787 convention. In Steele’s account of the conversation, Dayton insisted that the convention had been at an impasse until Benjamin Franklin delivered a speech proposing the hiring of a chaplain to lead the delegates in prayer. According to Dayton’s (or Steele’s) account (which is complete with ostensibly verbatim statements from the principals), Franklin recommended that the convention begin each day with “an address to the Creator of the universe, and the Governor of all nations, beseeching Him to preside in our council, [and] enlighten our minds with a portion of heavenly wisdom.” George Washington, although not responding verbally to Franklin’s suggestion, reputedly exhibited a “countenance at once so dignified and delighted” as to indicate his approval, “[n]or were the members of the Convention, generally less affected.” According to Steele, Franklin’s motion carried unanimously, and a chaplain was soon hired to lead a prayer. As soon as God’s name had been invoked, the delegates quickly reached the Great Compromise regarding representation in Congress, and the Constitution was salvaged and the republic preserved.48 The Dayton-Steele account was a work of fiction. Nonetheless, it provided compelling evidence for those who insisted that God had sanctified the American republic. Conveniently, the Dayton-Steele version did not conflict with the recently published notes on the convention by Robert Yates, which were notoriously incomplete and did not reflect that Franklin’s motion had been tabled. James Madison, whose more accurate record of the convention would not be published until after his death in 1836, contested the Dayton-Steele account in private correspondence. But Madison’s protestations and his own version of the incident, contained in his posthumous Records, did not reach a wide audience. The Dayton-Steele account, in contrast, was widely circulated through the National Intelligencer and New York Gazette and was retold as the accurate version of the events for years to come.49

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Another example of the sanctification of the nation’s founding is contained in an exchange between James Madison and the Reverend Jasper Adams near the end of Madison’s life. Adams, the rector of St. Michael’s Episcopal Church in Charleston, South Carolina, and a cousin of John Quincy Adams, delivered a sermon in February 1833, published as The Relation of Christianity to Civil Government in the United States. The “question of great interest” that Adams sought to address was whether these [United] States intended to renounce all connexion with the Christian religion? Or did they intend to disclaim all preference of one sect of Christians over another, as far as civil government was concerned; while they still retained the Christian religion as the foundation-stone of all their social, civil and political institutions?50 Adams made clear that he accepted the latter proposition. While not expressly attributing the nation’s founding to divine intervention, Adams asserted that the United States had sprung from the efforts of “our strong and pious forefathers, in the exercise of a strong and vigorous faith.” The Christian religion “was intended by them to be the corner stone of the social and political structures which they were founding.” Moreover, Adams maintained that the Constitution declared the United States to be a “great Christian nation” despite the absence of a religious acknowledgment and its explicit prohibitions against establishments and religious tests. The establishment clause, Adams stated, should not be understood as “abolishing a national religion, which had been professed, respected and cherished from the first settlement of the country, and which it was the great object of our fathers in settling this then wilderness.” Rather, the First Amendment had installed Christianity as the national religion by leaving state establishments of religion “in the same situation in which it found it; and such was precisely the most suitable course.” Because several states had retained Protestant establishments and laws that favored Christian adherence, Adams insisted, it was Congress’s duty “to permit the Christian religion to remain in the same state which it was” when the Constitution was adopted and to ensure that its laws were “consistent with [Christian] principles and usages.” In Adams’s mind, only a Christian nation would enact measures that guaranteed the dominance of Christianity.51 No constitutional provision was safe from Jasper Adams’s revisionist pen. Adams reinterpreted the Constitution’s requirement of an oath for the president and its provision exempting Sundays from the time allowed for a veto as now mandating that “all employed in [government] service will practice the duties of the Christian faith,” a creative reading of Article I, section 7, and a

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disregard of the prohibition against religious tests found in Article VI, clause 3. All of this evidence left Adams with one conclusion only: THE PEOPLE OF THE UNITED STATES HAVE RETAINED THE CHRISTIAN RELIGION AS THE FOUNDATION OF THEIR CIVIL, LEGAL AND POLITICAL INSTITUTIONS. Thus, while all others enjoy full protection in the profession of their opinions and practice, Christianity is the established religion of the nation, its institutions and usages are sustained by legal sanctions, and many of them are incorporated with the fundamental law of the country.52 Considered in this light, the contention that Christianity had no connection with civil government was “one of those which admit of being tested by the absurd and dangerous consequences to which they lead.” The Constitution was founded on Christian principles and the government was obligated to protect and promote Christianity, which Adams asserted was the national established religion.53 In his sermon, Adams had reinterpreted the very provisions of the Constitution written to ensure the government’s secular nature and to promote religious equality. Yet, while his interpretation lacked textual and historical accuracy, it fit within a growing popular perception of the nation’s religious origins. Buoyed by a favorable local reaction, Adams printed his sermon and sent copies to several national figures, including Supreme Court justices John Marshall and Joseph Story. Marshall was complimentary but guarded in his response. The American people were Christian in belief, Marshall wrote, and “with us, Christianity & Religion are identified.” As a result, the chief justice remarked, “[i]t would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it.” However, Marshall qualified his response by cautioning that legislating on Christian principles “is admitted to require great delicacy” because of freedom of conscience.54 In contrast to Marshall, Story was more enthusiastic about Adams’s sermon, calling “its tone & spirit excellent.” Confirming Adams’s conclusions, Story replied that “[m]y own private judgement has long been, (& every day’s experience more and more confirms me in it,) that government can not long exist without an alliance with religion to some extent; and that Christianity is indispensable to the true interests & solid foundations of all free governments.” Story also told Adams that he concurred in the latter’s limited view of the establishment clause: “I distinguish, as you do, between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it.”55 As will be addressed

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in more detail in later chapters, Joseph Story held firm views about the proper relationship between Christianity and government, opposing disestablishment in Massachusetts during the 1820s and 1830s. Story was also a leading proponent of the theorem that “Christianity was part of the common law,” having recently written an article in American Jurist criticizing Thomas Jefferson’s position on church-state relations. Finally, Story had just completed his Commentaries on the Constitution, where he advocated a cramped view of the religion clauses, one that permitted government favoritism toward Christianity over other faiths. The argument in Adams’s sermon thus fit closely with Story’s own inclinations.56 Adams also sent a copy of his sermon to James Madison, who was now in his eighty-third year. Madison tactfully abstained from outwardly criticizing Adams’s interpretation of the Constitution. Instead, he set out an argument for the superiority of governments without established religions. Pointing to the “Papal system” and the religious establishments in the Old World, Madison noted that such arrangements always resulted in “very little toleration of others” and were “found to be the worst of Governments.” Rights of conscience, Madison declared, are “more or less invaded by all religious Establishments.” History taught that the best system was one where support of religion was “left to the voluntary associations & contributions of individuals.” Madison pointed to the experience in Virginia where the “more than 50 years since the legal support of Religion was withdrawn sufficiently prove that it does not need the support of Government and it will scarcely be contended that Government has suffered by the exemption of Religion from its cognizance.”57 Madison wrote that his reply “frankly express[es] my view on the subject,” indicating that his opinions about church and state had not changed despite his age. In a conciliatory gesture, Madison commended Adams for “very ably maintain[ing] yours,” while he acknowledged that it was not always easy “to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points.” Madison indicated, however, that any uncertainty as to those boundaries did not invite intermixing the two entities: The tendency to an usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against the trespasses on its rights by others.58 Unfortunately, Madison did not respond directly to Adams’s claims of America’s Christian nationhood or the Constitution’s religious foundations.

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Madison was generally hesitant to comment on the proceedings of the Constitutional Convention and had directed that his notes on the convention not be published until after his death. But Madison’s opinion of such claims was hardly in doubt: he had written in his Memorial and Remonstrance (1785) that religious matters were “not within the cognizance of the Civil Government.” Republics derived their authority from the people, who were sovereign, and as such, legalized religion was “not necessary to civil government.” Madison’s opinions had not changed later in life. In an unpublished memorandum written around the same time as his response to Jasper Adams, Madison wrote that religious enthusiasts seemed to nourish “the erroneous idea of a national religion,” an apparent reference to the increased popularity of the concept.59 By the 1830s, however, Madison was an old man speaking to a new generation with no firsthand knowledge of the founding period and even less appreciation of the secular perspective of government enunciated by Madison. In place of the secular perspective had arisen a reinterpretation of the founding period by the Jasper Adamses of the day: the founders had become devoutly religious men, guided by the divine hand of God, and the Constitution was now a sacred document that memorialized the nation’s status as Christian.60 Adams’s pamphlet did not escape all public criticism. An anonymous review of the sermon appeared in the American Quarterly Review in 1835.61 The essay offered a stinging rebuke of Adams’s claims about Christianity’s special legal status, labeling them “absurd.” Christianity had “never been incorporated in any other way with civil power,” the essay asserted, and such claims “endeavoured to overturn one of the main pillars of our liberty[:] . . . freedom of conscience.” Reviewing the same documents and sources as in Adams’s sermon, the essayist claimed they led to a different conclusion: “THE PEOPLE OF THE SEVERAL STATES—ALTHOUGH A VAST MAJORITY OF THEM WERE CHRISTIANS—RESOLVED, IN FRAMING THEIR CONSTITUTIONS, TO DESTROY ALL CONNEXIONS BETWEEN CHURCH AND STATE.” Adams was seeking to rewrite history and, by so doing, invited a return to religious intolerance and discrimination, the author charged: There is, and there can be, no middle ground between perfect liberty and tyranny on this subject. Give government the right to interfere, to pass laws for the protection of Christianity, and it will necessarily have to determine what is Christianity, and what laws are necessary for the protection of Christianity. In other words, it will have an unlimited power on the subject.62 Adams brushed off the criticism, describing the essay as being “of the style of the Jefferson and [Thomas] Cooper school,” the latter being a well-known atheist.63

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Jasper Adams was not the only antebellum author to embrace this “myth of America’s Christian past,” to use Jon Butler’s phrase.64 As evangelicalism took hold of antebellum culture, other commentators, such as Senator Theodore Frelinghuysen, Robert Baird, Stephen Colwell, and Benjamin F. Morris, published histories that perpetuated notions of the nation’s religious foundation. In stark contrast to the views of the clergy who were alive during the founding period, these revisionists claimed that America’s institutions had always had a Christian character, from the earliest days of the colonies through the Revolution and up to the present day. Frelinghuysen, writing in 1838 following the controversy over Sunday mail delivery, attacked Jefferson’s stance on churchstate separation, declaring it a “false position,” while asserting that “[r]eligion was the fountainhead of our history. . . . Our fathers came hither as christians, as men devoted to christianity above all things.”65 Religious historian Robert Baird made similar claims in his widely read Religion in the United States of America (1844), writing that “[a]ll the leading men [at the Constitutional Convention] were believers in Christianity, and Washington, as the world knows, was a Christian.” Baird asserted that the Constitution was based on Christian principles and assumed a close relationship between church and state: it “was not intended for a people that had no religion.” He explained the absence of a religious acknowledgment on the basis that the people were already Christian, “whose existing laws . . . gave ample evidence of their being favorable to religion.” The founders did not “formally mention [Christianity] as the law of the land [because] it was already,” Baird claimed, and they never dreamed that “it should be excluded from the government.” On the contrary, the “Christian character of the government” was evident through the host of official proclamations and laws that recognized, favored, and protected Christian practices and institutions.66 Ten years later, Stephen Colwell expanded on Baird’s claims. The founders, Colwell wrote in his 1854 book, The Position of Christianity in the United States, were Christian men in a Christian country who “acknowledged the revelation of [God’s] will contained in the Holy Scriptures” in the Constitution. “[ T ]hey derived the sanctions of their institutions, and the morality of their legislation and of the whole social system, from the Scriptures.”67 As Benjamin Morris concurred in his book The Christian Life and Character of the Civil Institutions of the United States, “the Constitution was formed under Christian influence and is, in its purposes and spirit, a Christian instrument.” Like the holy authorship of the scriptures, a divine hand guided the drafting of the Constitution. Neither the no-religious-test clause, that bane of the Anti-Federalists, nor the First Amendment affected this analysis. Whereas Baird primarily viewed the establishment clause as not barring government from aiding religion, Colwell and

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Morris turned it into an affirmative obligation to “promote the interest of religion.” That religion, of course, was Protestantism.68 So far as other faiths were concerned, they were merely tolerated: “Any other religion inconsistent with Christianity may be prohibited, but the Christian religion is declared to be out of the reach of Congressional interference. Legislation may promote the interests of religion by any measures not inconsistent with toleration.”69 The revisionists also promoted some popular myths surrounding the events of the founding period. Benjamin Morris in particular was guilty of perpetuating the Dayton-Steele account of Franklin’s prayer proposal at the Constitutional Convention, even though by then it had been discredited by historian George Bancroft and refuted in Madison’s Notes. Another popular story, also repeated by Morris, attributed the lack of a religious acknowledgment in the Constitution to a reputed statement by Alexander Hamilton that the delegates simply forgot to include one. Similar claims of the founders’ piety and the guiding hand of Providence appeared in Mason Locke “Parson” Weems’s The Life of George Washington and in the Reverend Edward G. McGuire’s immensely popular book, The Religious Opinions and Character of Washington, the latter transforming the first president into a man with the strongest of “evangelical convictions.” Even George Bancroft fueled such myth making, writing that Washington “was from his heart truly and deeply religious. . . . No man more thoroughly believed in the overruling Providence of a just and almighty power.” These myths became embedded in the popular psyche and in turn perpetuated the perception of America’s Christian founding. More significant for disestablishment, the popular view of the Constitution changed from it being a secular document that ensured religious equality to one that favored, if not promoted, Protestant Christianity to the exclusion of other faiths.70

Antebellum Resistance The evangelical social reformers and revisionist writers were not simply seeking to correct the historical record; they were also reacting to contemporary challenges to the idea of a Christian America. Despite evangelical Protestantism’s ascension to cultural dominance during the antebellum period, early Americans did not march in theological lockstep. The same forces that fed the rise of evangelicalism—the breakdown in ecclesiastical authority, religious experimentation and voluntarism, and an expanding frontier—fueled a cacophony of beliefs and movements, religious and otherwise. Many people who embraced less religious forms of expression (or alternative religious forms, such as Universalism, transcendentalism, and spiritualism) resisted the hegemonic forces of the

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“evangelical phalanx.” Most modern scholarship documenting the rise of evangelicalism during the early nineteenth century has tended to understate the level of resistance to evangelical culture and the ongoing support for greater separation between religious and civil affairs. Resistance to efforts to redefine America as a Christian nation came from several quarters: old deists and new freethinkers; Jeffersonian and Jacksonian republicans; Masons; religious liberals; evangelical dissenters; and radicalized working people. Together, they constituted a separationist counterweight to efforts to redefine disestablishment during the first forty years of the nineteenth century. Unlike the evangelical phalanx, however, these disparate forces of resistance were rarely united, and their efforts eventually succumbed to the superior numbers of the evangelical movement. Still, they offered an alternative perspective to the Christian-nation trend, as can be seen in three interrelated events: the rise of a visible free-thought movement in antebellum America; government policies and related events during the Jacksonian era, in particular the Sunday mail controversy; and, as will be discussed in the following chapter, the drive for disestablishment in the New England states.71

“Skeptics, Levellers and Infidels” Early on, orthodox clergy and their revisionist allies encountered dissenting voices from supporters of Jefferson and anticlerical radical Republicans who continued to draw inspiration from Thomas Paine and Elihu Palmer, among others. During the 1800 election, New York lawyer Tunis Wortman wrote a spirited response to the conservative attack on Jefferson’s religious views, calling him “a christian” and “a republican” worthy of public office. In the same piece, Wortman offered a dissertation on the attributes of disestablishment and church-state separation. Writing as a friend “and not the enemy of christianity,” Wortman declared that “the establishment of christianity, is incompatible with civil freedom”: Religion and government are equally necessary, but their interests should be kept separate and distinct. No legitimate connection can ever subsist between them. Upon no plan, no system, can they become united, without endangering the purity and usefulness of both—the church will corrupt the state, and the state pollute the church. Christianity becomes no longer the religion of God—it becomes the religion of temporal craft and expediency and policy.72

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Wortman, like many Republicans, advocated more than a formal political disestablishment. He argued for greater toleration of dissenting views and for reducing the influence of the clergy on social and political matters: Let me not be told, that religion is in danger, and that we should therefore increase the powers and influence of the clergy. I say, and am ready to maintain, that religion is in greater danger, by permitting them to intermeddle with political concerns, than by confining them, with the utmost rigour, to the duties of their profession. . . . [ T ]hey should not be suffered to make religion an engine of politics.73 Wortman believed that the political activities of orthodox clergy were inconsistent with the principle of disestablishment. Similar views were espoused by New York’s DeWitt Clinton and Connecticut’s Joel Barlow and Abraham Bishop, all of whom defended Jefferson’s views about religion and government as they were defending his fitness for office. Bishop attacked the political power of the Standing Order, noting that “Intolerance with its hydra heads still roams about the State.”74 Philip Hamburger disputes the sincerity of the Republican defense of church-state separation during the 1800 election. He argues that Wortman and others were chiefly interested in discrediting “the right of clergymen to make politics the subject of religion,” and that they raised separationist principles chiefly “to garner antiestablishment votes against Federalists.” In contrast, Hamburger insists that orthodox clergy were not “calculating” but “merely felt obliged to bring their faith to bear upon party politics.”75 Hamburger understates the philosophical commitment of the Republicans while he overstates the purity of motive of the orthodox clergy. Both sides were engaged in a political and ideological struggle. The orthodox clergy advocated narrow views of disestablishment while they supported the remaining state establishments in New England, a fact not lost on the Republicans. The Standing Order clergy well appreciated that the establishments benefited their churches in power and money to the disadvantage of other faiths, and a Jeffersonian model would end that dominance. The orthodox clergy also initiated personal assaults on Jefferson’s religion, not satisfying themselves with merely asserting the importance of religion for civil society. Even before the election, Timothy Dwight attacked the Republicans, and Jefferson by implication, in his 1798 sermon “The Duty of Americans, at the Present Crisis,” using inflammatory rhetoric to claim that the Republicans would turn churches into “temples of reason, . . . our psalms of praise [into] Marseilles hymns,” the nation’s sons into “disciples of Voltaire” and “our daughters [into] the concubines of the Illuminati.”76 According to one

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account, Jefferson was publicly stigmatized as an “atheist” or “French infidel” in approximately half of all New England pulpits during the election. The Republicans’ “anticlerical” statements, albeit responding to immediate attacks on Jefferson’s candidacy, were made within a larger context of refuting the Standing Order, whose members used their influence and position to maintain religious preferences and conformity. Wortman’s call “to keep religion separate from politics [and] to prevent an union between the church and the state” was thus part of this larger debate about the meaning of disestablishment. At least through the Jefferson and Madison administrations, followers of the emerging Republican Party espoused Jeffersonian views of church-state separation while they resisted actions of the coalition of Federalists and orthodox clergy. Their commitment to Jeffersonian principles did not reflect a transitory, politically motivated convenience.77 Other support for greater disestablishment during the antebellum era came from the aging deists and radical Republicans who had cut their teeth on Paine’s writings and Palmer’s lectures. Although American deism declined as a significant force after Palmer’s death in 1806, religious skepticism persisted throughout the first third of the century, primarily within the ranks of the Republican (later, Democratic) Party, in a handful of urban deist societies, and in the rising labor and free-thought movements. Antebellum free thought never commanded a large following, but it offered spirited resistance—and constituted an ongoing challenge—to the evangelical phalanx. Palmer and his heirs also promoted a form of skepticism that appealed to the working and lower middle classes; not simply free thought was advocated but greater economic and social equality. Separationism was part of a comprehensive ideology that promoted republican ideals of greater political and social equality and freedom of conscience.78 A brief resurgence of free thought or skepticism coincided with or arose out of the advent of Jacksonian democracy in the 1820s. During this time, several Republican-controlled state legislatures abolished many property qualifications for voting, expanding the right of suffrage to the lower classes. Most of these new voters were attracted to the monetary and egalitarian policies of the emerging Democratic Party and its standard-bearer, Andrew Jackson. President Jackson, with his following among the unwashed and unchurched, eschewed the religious moralizing of the New England divines and earned their ire for refusing to issue a call for prayer and fasting or to support the activities of Protestant missionaries in Native American territory. Jackson explained his refusal to issue a prayer proclamation: he declined to “disturb the security which religion now enjoys in this country, in its complete separation from the political concerns of the General Government.”79

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Religious liberals, freethinkers, and others who resisted the efforts of the voluntary societies to Christianize the culture found refuge in skeptical societies, the expanding Democratic Party, or the more radical Workingman’s Party. Noted skeptics Robert Owen, Robert Dale Owen, Frances Wright, George Evans, and Abner Kneeland urged resistance to the moral societies at the same time they condemned economic exploitation and sexual inequality. In particular, skeptics charged that the same groups that sought to enhance Sabbath enforcement, impose temperance, and unite church and state opposed the expansion of workers’ rights. They found a ready audience among the unchurched and the working class. Bertram Wyatt-Brown writes that, “[b]y the early 1830s, anticlericalism [had] reached a zenith; its source was primarily a lower-class resentment of the success and awesome innovations of educated, eastern middle-class churchgoers in building societies and founding newspapers to spread a puritanical conformity across the land.”80 The social and economic goals of the freethinkers and labor organizers did not go unnoticed. Orthodox and evangelical Protestants expressed alarm over the rise of “mobocracy” that was taking place through expanded suffrage. They also saw the resurgence of skepticism as further evidence of the breakdown of Christian norms in the culture. “Atheism is a levelling system,” charged one religious and political conservative. “[I]t labors to overthrow all ancient customs [and] all ancient institutions.” As the American Monthly Magazine declared in 1836, religious skepticism “marches under the banners of political reform.” In reality, it “declares a war of extermination upon the established institutions of religion and government. It denominates all religion priestcraft, all property monopoly, and all jurisprudence an organized fraud upon the liberties of mankind.”81 The dire warnings of religious and business leaders about the resurgence of skepticism were overstated. The number of free-thought and skeptical societies was never large, with most located in the eastern seaboard cities, and the actual commitment of their followers to principles of religious skepticism or atheism can be questioned. More likely, intellectuals, political liberals, and workers were attracted to the overall message of political liberalism, social permissiveness, intellectual curiosity, and economic equality. Still, the freethinkers offered a dissenting critique of the rhetoric of the evangelical reformers and their revisionist allies. Their various newspapers, including the New Harmony Gazette (Free Enquirer) and the Working Man’s Advocate, and the public attention given to the lectures of Robert Owen and Frances Wright caused consternation among evangelical leaders. Evangelical senator Theodore Frelinghuysen warned that Christianity was under attack: “religion . . . which many of us deem essential to our future well-being as a people, is everywhere politically set at

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nought, regarded as an outlaw to the institutions of the country.” Skepticism, or “infidelity” as Frelinghuysen preferred to call it, was a “malignant principle, [operating] under the guise perhaps of philosophy or a show or intellectual freedom.” Frelinghuysen tied the free-thought movement directly to the misguided notions of church-state separation promulgated by Thomas Jefferson, perpetuated by Andrew Jackson, and now embraced by working people.82 Lyman Beecher, who had battled deism at Yale in the 1790s, also viewed the resurgence of skepticism with alarm. Between 1831 and 1833, Beecher conducted a series of lectures in Boston and Cincinnati on the new “epidemic of infidelity,” which only gave the free-thought movement more publicity. Indefatigable as always, Beecher pulled few punches in his choice of words. Inspired by the Owens, George Evans, and Frances Wright—the “female apostle of atheistic liberty”—the infidels sought to abolish private ownership of property, ban marriage, disband the family, drive the Bible out of circulation, and obliterate the Sabbath. “It is the tendency then of political atheism to prostrate our republican institutions . . . to suspend the restraining action of the divine government, until self-government becomes impossible, and revolution and anarchy follow, and a despotic government closes the scene.” As Beecher’s quotation indicates, he equated republicanism with Christianity, while free thought and greater church-state separation were tied to anarchy. For evangelical reformers like Beecher, America was involved in a battle for its very soul.83 Partially in response to the resurgence of religious skepticism, Philadelphia Presbyterian minister Ezra Stiles Ely in 1827 called for the formation of a “Christian party in politics,” to unite the various evangelical denominations in a loose political organization. In a widely circulated sermon, Ely declared that it was “manifestly the duty of all our Christian fellow-citizens to honour the Lord Jesus Christ and promote christianity by electing and supporting as public officials the friends of our blessed Savior.” As a way of ensuring that only Christians who were “orthodox in their faith” were elected to public office, Ely proposed “a new sort of union, or, if you please, a Christian party in politics,” composed of the different evangelical denominations: We will not pretend to search the heart; but surely all sects of Christian[ity] may agree in opinion, that it is more desirable to have a Christian than a Jew, Mohammedan, or Pagan, in any civil office; and they may accordingly settle it in their minds, that they will never vote for any one to fill any office in the nation or state, who does not profess to receive the Bible as the rule of his faith.84 Ely was vague about whether he envisioned a formal organization of evangelical voters; he denied a goal of forming “a new society, to be added to the scores

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which now exist.” More likely, he sought to build upon the evangelical unity that had been demonstrated through the moral reform societies—a loose alliance of Presbyterians, Congregationalists, Dutch Reformed, Episcopalians, and Methodists who would oppose “any known advocate of Deism, Socinianism [i.e., Unitarianism], or any species of avowed hostility to the truth of Christianity.” If the members of the various Protestant denominations would vote their conscience, they “could govern every public election in our country.”85 Ely saw nothing extreme in his proposal; in a “christian nation” the pious should not be required to put aside their beliefs and allow the election of impious men: “It deprives no man of his right for me to prefer a Christian to an Infidel.” He claimed that his proposal did not amount to a religious test for office holding nor lead to “the establishment of any one religious sect by civil law”: “let Christianity by the spirit of Christ in her members support herself; let Church and State be for ever distinct; but, still, let the doctrines and precepts of Christ govern all men, in their relations and employments. If a ruler is not a Christian he ought to be one, in this land of evangelical light.”86 Ely’s greater call for Christians to vote their conscience and elect pious men was lost on most observers. Because Ely’s proposal only added to anticlerical suspicions about the true goals of the reform societies, most evangelical leaders held it at arm’s length. On the other side, George Evans’s Working Man’s Advocate declared that Ely’s Christian party foretold the uniting of church and state, while Frances Wright warned that it represented a standard “under which all the party-colored ranks of orthodoxy may rally into one phalanx.”87 Additional criticism came from religious liberals, led by Unitarian minister William Ellery Channing. Ever careful to distance themselves from religious skeptics, Channing and others criticized the moral societies’ efforts to remake America in a narrow Christian image. Writing in 1829, Channing claimed that moral societies were becoming an informal establishment, an “irregular government created within our constitutional government,” one that had the “propensity to rule, to tyrannize . . . to make themselves standards for other minds, to be lawgivers, instead of brethren and friends.” The religious views promoted by these societies “assumed a sectarian form,” Channing insisted, and their leaders, “making narrowness a matter of conscience, have too often shunned connection with men of different views as a pestilence.” The resulting harm to society would be the “silencing of free speech, and [the denial of our] dearest religious and civil rights.” Though they disagreed on many points, skeptics and religious liberals shared a concern that evangelical reformers were undermining the promise of disestablishment.88 The antebellum free-thought movement flourished throughout the 1830s. Skeptics, or “free enquirers” as they called themselves, established societies

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and “temples of reason” in cities up and down the eastern seaboard, with the most significant organizations existing between Boston and Baltimore. The New York Moral Philanthropists Society of Tammany Hall was the most successful; it was led by Abner Kneeland, who became the nation’s most celebrated atheist with the departures of Frances Wright and Robert Owen. The societies debated the infallibility of the Bible, the reality of miracles, and the dangers of “priestcraft,” a reference to the growing influence of orthodox clergy and their reform societies. The skeptics viewed themselves as heirs of Hume, Voltaire, Paine, and Jefferson. By the late 1830s, the movement fell into decline, brought on by the financial panic of 1837—forcing the closure of several temples—and a loss of leadership.89 A handful of freethinkers were prosecuted for violating blasphemy laws; the leading conviction was against Kneeland for publishing an article in the Boston Free Inquirer that allegedly denied the existence of God. Such actions, and the relentless attacks on religious skepticism by evangelicals like Beecher and Frelinghuysen, marginalized the freethinkers and their principles. For a brief time, however, the freethinkers offered a strong dissenting voice to the call to make America a Christian nation.90

The Sunday Mail Controversy No episode during this period better represents the ongoing resistance to evangelical efforts to Christianize America than the 1829–1830 controversy over Sunday mail delivery. The controversy centered on a federal law that required post offices to be open on Sundays, and it became emblematic of resistance to evangelical efforts to transform public and government attitudes toward Sabbath observance. The episode demonstrates a steadfast support for a Jeffersonian ideal of church-state separation in the wake of the growing Christian-nation perspective. As will be discussed in more detail in chapter 5, following the Revolution a majority of states either left in place or enacted laws prohibiting labor, entertainment, and unnecessary travel on Sundays. In Massachusetts, laws still required church attendance. Yet, Sabbath laws were frequently ignored and were sporadically enforced, even in New England. As America entered the new century, evangelical reformers such as Lyman Beecher decried the growing public disrespect for the Sabbath. The “profanation of the sabbath” served as one of Beecher’s chief examples in his 1803 call for the formation of moral societies. “The tide of worldliness, unobstructed, would roll over the Sabbath-day, and extinguish the fire upon the altar of God,” Beecher wrote later. To churches and reform societies “is committed the work of preserving the Sabbath, and of

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perpetuating the worship of God;—not by physical power, but by that moral influence which [God’s word] . . . exert[s] upon the consciences of men, and upon the law and habits of society.”91 For many Protestants, the benefits of Sabbath laws were more than increased public piety or the protection of Sunday worship from unwelcome disturbances and distractions. Uniform observance of the Sabbath represented a community and national commitment to respect religious institutions and a way to preserve Christian society. And for orthodox Calvinists, Sabbath laws symbolically confirmed a national covenant with God. The Sabbath issue thus took on special importance for many conservative Protestants. The Sabbath mail controversy began in 1810 when Postmaster General Gideon Granger secured passage of a law requiring all postmasters to open their offices and distribute mail on every day that mail arrived, Sundays included. The law, while affecting only the nation’s 2,300 post offices and postmasters, meant that communities had an alternative, if not competing, place for people to congregate on Sundays. With Sundays being the only day of rest for many workers, open post offices became magnets that drew people into towns to socialize, drink, and gamble, much to the affront of pious churchgoers.92 Protestant clergy responded quickly to the 1810 law, with Timothy Dwight, Lyman Beecher, and even liberal William Ellery Channing lending their names to petitions to Congress seeking the law’s repeal. The petitions asserted that the federal law conflicted with state Sunday laws, violated the conscience rights of postmasters, and profaned the peace and sanctity of the Sabbath. Occasionally, the petitions cast the issue in larger terms: Sunday mail delivery was wrong because America had a “Christian Government . . . formed and established by Christians and therefore, bound by the Word of God.” Congress was not “at liberty to contravene His laws, nor act irrespectively of the obligations we owe to Him.” The church-organized petition drive, totaling more than a hundred petitions, ran intermittently from 1811 until 1815, but in the end, it could not compete with the war with Great Britain and the concern that a repeal might ban Sunday transportation in a time of war. The Senate let the matter die in January 1815.93 The issue of Sunday mail delivery did not go away, however, but festered in the minds of evangelical reformers, who viewed it as an obstacle to their efforts to achieve greater Sabbath observance. The reformers faced an increasing array of competing forces that were undermining compliance with Sunday laws, not the least of which were improvements in transportation through the opening of the Erie and Chesapeake & Ohio canals. Because mail traveled on most any private transport, the Sunday mail law effectively exempted stagecoaches, ships, and barges from complying with local Sabbath laws. The problem, Lyman Beecher observed, was that the nation’s

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inland seas, and canals, and our stages, and the steam-boats, and the rail-roads, in all directions, seem to vie with each other in their all-pervading and lengthened career of sabbath day violations. Alas! the whole nation seems to be on the sabbath in a state of migration . . . the sanctuary empty, and every stage, boat, and tavern full.94 To stem this growing trend, in 1828 Beecher helped to organize the General Union for the Promotion of the Christian Sabbath (GUPCS) with Josiah Bissel Jr., an evangelical merchant from Rochester, New York, who operated stagecoach and canal transport lines that did not run on Sundays. Beecher and Bissel modeled the GUPCS after other moral reform organizations, such as the American Tract Society, the American Sunday School Union, the American Bible Society, and the American Temperance Society, the latter having been established by Beecher two years earlier. For religious reformers, Sabbath observance went hand in glove with a biblically literate and temperate society. Although repeal of the 1810 mail law was of primary importance, the GUPCS broadened its focus beyond securing the enforcement of Sabbath laws to transforming public attitudes through education, example, and social pressure. The GUPCS was in it for the long term, and the repeal of Sunday mail delivery would be the first step in transforming American society into a Christian-observant culture.95 In December 1828, the GUPCS mounted a new drive to petition Congress, seeking repeal of the mail delivery law. In less than two years, approximately 900 petitions, all with multiple signatures sometimes running into the hundreds, had been sent to Washington. The drive represented the first instance of direct-mail, grassroots organizing for a religious cause and was of a grand scale for its day. As with the petitions of fifteen years earlier, the memorials argued that Sunday mail delivery violated the Fourth Commandment and infringed on the free exercise rights of postmasters (“in a land of free republican institutions, that no man shall be disenfranchised from office by impositions of duty incompatible with the honest dictates of his conscience”), while the federal rule conflicted with state and local Sabbath laws.96 The GUPCS officials sought to control the tone of the debate by massproducing petitions that omitted more strident religious language. Its petitions emphasized how mail delivery undermined that “piety and morality, so necessary to be cherished by a REPUBLICAN PEOPLE.”97 Still, a number of independent petitions contained language that was more religiously insistent about the principles at stake. A December 10, 1829, petition from Essex County, New Jersey, asserted that “the people of these United States, in their national capacity and character, constitute a Christian nation.” This character did not

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rest solely on the inclinations of the majority of Americans, but on the basis that “the constitution itself . . . contain[s] the most unequivocal evidence that it was framed by Christians, and adopted for their government.” The American people and their leaders were “therefore bound by the word of God, not at liberty to contravene his laws, nor to act irrespectively of the obligations we owe him.” Other petitions spoke of Sabbath disregard as “a national sin” and a failure to live up to the covenant between God and America: “we violate the law of God, provoke his displeasure, and inflict incalculable evil in our country,” wrote petitioners from Tennessee. A group from North Carolina declared: “[we] solemnly protest against the union of church and state,” but “[i]t would be too much to say (and it is now too late to say it) that there shall be no legislative sanctions to enforce the laws of God; the statute book of the nation furnished too many instances of such sanctions, now to call in question the right.” For these petitioners, the legal enforcement of God’s laws was consistent with disestablishment. All of the petitions, homegrown and GUPCS-produced alike, reflected that Sabbath compliance was part of a larger issue about the religious character of the nation.98 The organizing effort of the GUPCS and its allies was impressive, but it was closely matched by supporters of Sunday mail delivery. Various commercial interests opposed the repeal, but heavier opposition came from religious liberals who also understood the larger issues at stake. Lacking the organization and resources of the moral reformers with their churches and denominational structures, supporters of Sunday mail delivery held rallies and mounted a spirited counter-petition drive. In contrast to the arguments of the moral reformers, the anti-Sabbatarians proffered a competing vision of church-state relations in America.99 Supporters of Sunday mail delivery also cast their petition arguments in broad terms. A petition that arose out of a January 31, 1829, meeting in New York City’s Tammany Hall claimed that the religious reformers had “lost sight of the precepts and genuine character of the religion which they profess, by supposing it requires the aid of civil government for its support.” The Tammany memorialists, likely freethinkers, asserted that not only would a repeal “favor [a] . . . peculiar view . . . of religious duty,” it would be “contrary to the letter and spirit of the constitution, which guarantees freedom of opinions to every citizen.” Legal recognition of a religious obligation was “fraught with the most pernicious and dangerous consequences to our civil and religious liberties, and calculated to prepare the way for the final establishment of a national religion.”100 Whether the group truly believed that repeal was one step removed from establishing a national religion, its petition reflected a distinct fear that the efforts of the GUPCS and other reform societies were leading the nation in

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a direction away from constitutional disestablishment. The reformers exhibited a “misguided zeal [and] ecclesiastical ambition,” declared a New Jersey petition. A petition from Vermont expressed a similar view that the repeal, with its effective recognition of the Christian Sabbath, was contrary to religious disestablishment: Your memorialists confess incapable to discover any method of establishing a religion, unless it be by the establishment of its tenets; nor are they able to discover any principle which authorizes your honorable bodies to make one dogma of Christians part and parcel of the law of the land. . . . A religion, thus taken into the special favor of the Legislature, and all its doctrines, rites, and ceremonies ratified and promulgated by act of legislation, would constitute an establishment as firm and as perfect as the most zealous bigot could well desire.101 Peeling back the rhetorical claims of an impending religious establishment, one discovers genuine concerns that America might abandon hardfought principles of church-state separation and religious equality. “[R]eligious despotism can only be established insensibly, and by degrees,” warned a petition from Portsmouth, New Hampshire. The anti-Sabbatarians believed history was on their side: “To have proposed an open union of church and state would have been so manifest a violation of republican principle, as must have drawn upon its authors the just resentment of indignant people,” asserted a petition from Pennsylvania.102 In so arguing, the anti-Sabbatarians rejected claims of evangelical revisionist historians that the nation’s constitutional structure was based on Christian principles. Instead, the Constitution, as understood by the anti-Sabbatarians, “embraces within the pale of its protection the followers of various religions and sects, distinguished by different and often opposite rules of faith, doctrines, and modes of worship. To all these, whether Jews, Mahometans, Pagans, or Christians, it is the design of the constitution and the duty of the Legislature to extend equal rights and privileges.” The memorialists likely included few “Jews, Mahometans, [or] Pagans” (although possibly a few Seventh Day Baptists), so they personally were unlikely to suffer from the potential religious favoritism of a repeal. Rather, the anti-Sabbatarians were committed to a principle, an ideal: “[t]o recognize by law the divine origin of the tenets of one sect, to the exclusion of others, would be partial and unjust.”103 “Against the union of church and state all history rises its warning voice. Religion becomes corrupted and debased by the alliance, and sinks into an intolerant superstition; and civil liberty never yet found a deadlier foe than bigotry armed with the sword of temporal power.”104

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The words resonated with the ideas of Jefferson and Madison, ideas that still had a following. The legislatures of three states—Indiana, Alabama, and Illinois—also sent petitions opposing the repeal of the 1810 law and affirming broad principles of church-state separation and religious toleration. Even Unitarian leader William Ellery Channing, who had earlier lent his name to repeal petitions, voiced opposition to the methods and organizational strength of the reform groups.105 Congress gathered the various petitions and, upon consideration, issued two reports, one by the Senate and a later one by the House, both reaffirming the 1810 law. Both reports were written by Richard M. Johnson of Kentucky, a colorful figure who was a hero of the War of 1812, the putative slayer of the native leader Tecumseh, and a future vice president under Martin Van Buren. A close ally of Jackson, Johnson served in the Senate from 1819 to 1829 and in the House from 1830 to 1837, the timing of which allowed him to participate in the legislative considerations about Sunday mail delivery in both chambers. The reports, apparently written with the assistance of Obadiah Brown, the minister of Washington’s First Baptist Church, were ringing endorsements of Jeffersonian notions of church-state separation.106 Johnson wrote the Senate report early in the petition cycle, on January 19, 1829. As with the House report written some fourteen months later, Johnson did not confine himself to the issue of Sunday mail delivery. Rather, Johnson responded in both reports to the broader claims of the Sabbatarians about the religious character of the national government. Initially, Johnson stated that “a variety of sentiment exists . . . on the subject of the Sabbath day.” It should be remembered, Johnson wrote, that “the proper object of government is to protect all persons in the enjoyment of their religious as well as civil rights, and not to determine for any whether they shall esteem one day above another.” Congress could not place its authority behind the tenets of any faith without engaging itself in a religious controversy.107 Johnson could have stopped there, but he shared his understanding of church-state principles. As to the Sabbatarians’ claims of a Christian basis for government and a corresponding obligation to enact supporting laws, Johnson was unequivocal: “Our government is a civil, and not a religious, institution.” “Our Constitution recognizes in every person the right to choose his own religion, and to enjoy it freely without molestation.” Thus, “[i]t is not the legitimate province of the legislature to determine what religion is true, or what false.” And Johnson reiterated his position in the House report: “The framers of the constitution recognized the eternal principle that man’s relation with his God is above human legislation, and his rights of conscience inalienable.”108 Johnson was clear that he considered a repeal of the law to be inconsistent with

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principles enshrined in the First Amendment. In his mind, a repeal would be the first step toward a religious establishment: If a solemn act of legislation shall, in one point, define the law of God, or point out to the citizen one religious duty, it may, with equal propriety, proceed to define every part of divine revelation, and enforce every religious obligation, even to the forms and ceremonies of worship, the endowment of the church, and the support of the clergy.109 Johnson also scolded the GUPCS and others for their efforts to remake American culture according to a Christian vision. The advocates for repeal of the 1810 law “appear to be actuated by a religious zeal, which may be commendable if confined to its proper sphere,” Johnson wrote, but their actions were “better suited to an ecclesiastical than to a civil institution.” Should Congress accede to their request, Johnson continued, “it would establish the principle that the legislature is a proper tribunal to determine what are the laws of God”: If admitted, it may be justly apprehended that the future measures of the government will be strongly marked, if not eventually controlled, by the same influence; and when that influence begins to operate upon the political institutions of a country, the civil power soon bends under it, and the catastrophe of other nations furnishes an awful warning of the consequence. “Extensive religious combinations to effect a political object are, in the opinion of the committee, always dangerous.”110 The two reports are remarkable documents for their unwavering embrace of separationist principles in light of the efforts of the moral reformers and their evangelical revisionist allies. They deviated little from the arguments of Jefferson and Madison almost fifty years earlier. The extent to which Johnson’s views reflected the sentiments of a sizable number of legislators is difficult to gauge. Because Johnson’s reports were written on behalf of the respective committees, their contents may have represented the views of a majority of the committee members, or something close thereto. Alternately, the majority of the committee members might simply have supported the existing law, though not necessarily agreeing with Johnson’s rhetoric. But in light of the dire arguments made by the Sabbatarians, no member could have supported continuing Sunday mail delivery without understanding the greater symbolic issue at stake. The two majority committee reports elicited a handful of dissenting reports. Representative William McCreery cast the issue as involving rights of religious conscience for the postmasters: “the petitioners ask the enactment of no law

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establishing the first day of the week as the Christian Sabbath. . . . [they] ask not Congress to expound on the moral law; they ask not Congress to meddle with theological controversies.” At the same time, however, McCreery insisted that the “good of society requires strict observance of one day in seven. . . . [the] orderly attendance upon the ordinances of public worship and instruction have a direct and powerful tendency to improve the morals and temporal happiness of mankind.”111 Representative Samuel McKean of Pennsylvania also wrote a minority report urging the repeal of the law for the benefit of observant postmasters and to preserve the sanctity of the day against the rabble: “[It] is believed, that the most disorder is occasioned by a class of individuals not of business habits . . . having leisure on the Sabbath, [who] resort to the Post office to hear the news, and for pastime.” But neither report disputed the heart of Johnson’s arguments. McKean concurred that the “Federal Government was formed for civil and [not] religious purposes”: Restraints imposed on the consciences of individuals by human laws, sanctioned by severe penalties, have always failed to produce reformation. They have, generally, if not always, made men worse instead of better. Under such exercise of power, Christianity degenerates into an instrument of oppression, and loses all its beauty and moral excellence.112 The sharpest criticism of Johnson’s reports—and of the perceived secularist stance of the Jackson administration—appeared in evangelical senator Theodore Frelinghuysen’s book An Inquiry into the Moral and Religious Character of the American Government, which was published several years after the controversy. Frelinghuysen charged that Johnson’s reports had perverted the modest and respectful arguments of the petitioners, resorting “to the maligning of christianity itself”: [ T ]here is an odour that will not soon die away, entailed upon its memory by the report of the majority of a certain sabbath-mails committee. . . . The whole land is infected and becoming sick with the notion, that somehow there is that in the nature of our government, that calls not only for caution in regard to religion, but for distrust and jealousy against it.113 Despite the public rebuke of their efforts by Johnson’s reports, Beecher and the moral reformers did not concede defeat about the larger issue of transforming American society into a Christian nation. Reformers continued to emphasize the dangers of infidelity and atheism and the need for greater public piety. And, in the long run, the Sabbatarians had merely lost an important

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battle, but not the war. The Sunday mail delivery controversy only heightened public attention to the issue of Sabbath observance, and the legislative loss played into Sabbatarian arguments of the need for evangelicals to redouble their efforts against the threats to Christian civilization. Evangelical reform movements would continue to grow and attract converts to their causes. But the Sunday mail controversy also demonstrates the competing views of the interrelationship of religion and government and of the role of religion in antebellum society. The evangelical vision of a Christian nation, practically and symbolically, was on the rise, but it still encountered resistance by followers of the Jeffersonian model.114

4 New England Disestablishment

It was the last struggle of the Separation of Church and State. —Autobiography of Lyman Beecher (1865) At the same time that Protestant evangelicalism was taking hold of antebellum culture, the three remaining states with religious establishments were experiencing the pangs of political disestablishment. In all three states, the drive for disestablishment had strong partisan overtones, with Jeffersonian Republicans generally supporting the abolition of mandatory assessments (or liberalizing the rules providing exemptions for members of dissenting churches) and Federalists aligning with the Congregationalists or Unitarians who were locally dominant and the chief beneficiaries of the religious tax. The dispute also had a socioeconomic class aspect to it, with the New England elite—again, primarily Congregationalists, Unitarians, and a few Episcopalians—viewing the public support of worship and instruction as indispensable for maintaining an orderly society and reinforcing class standing. Support for disestablishment and greater separation came primarily, though not solely, from the democratically inspired lower and laboring classes, which also made up the bulk of the dissenting churches: Baptists, Methodists, Universalists, Shakers, Christ-ians.1 Agitation for greater religious equality under the assessment systems, if not for full disestablishment, was continuous in New England between 1800 and 1833 and represented one of the leading

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political and social controversies of the day. The fact that Connecticut, New Hampshire, and Massachusetts maintained establishments until 1818, 1819, and 1833, respectively, should not be interpreted as general satisfaction with the status quo until the end. Rather, religious assessments and other forms of religious preferences were as controversial in New England as they had been in those states that had disestablished immediately following the Revolution. This is so even though the New England systems were arguably more moderate than those that had existed in Virginia and other southern states. In fact, the high number of political and legal challenges to the enforcement of the assessment systems between 1800 and 1833 substantiates the level of resistance to the New England establishments. Thus, disestablishment in New England is chiefly a story of the efforts of religious and political dissenters to chip away at the existing establishments while the Standing Order sought to hold on to an entrenched assessment system against rising popular opposition. The arguments pro and con during the battles over disestablishment reveal the evolving attitudes toward that concept.2 In the early nineteenth century, public financial support for worship, usually in the form of an assessment levied by a town or parish to pay for the minister and church preferred by a majority of voters, was the norm in four New England states: Massachusetts, Connecticut, New Hampshire, and Vermont. In all of these states, provisions allowed members of dissenting or minority churches to obtain certificates of exemption, whereby their assessments would (hopefully) be paid to their respective churches. The ease with which dissenters could obtain certificates varied widely; at times, states required that the dissenting ministers and their churches be licensed and incorporated, the latter often being an arduous task of petitioning the legislature, which retained discretion over the granting of incorporation articles.3 Some denominations, primarily the Baptists, objected to the requirements of exemption certificates, licensing, and church incorporation on theological grounds, arguing that profane governments had no authority over things sacred. Frequently, officials imposed strict prerequisites for the granting of a certificate, such as requiring a petitioner to prove membership in good standing in a church with a full-time ordained minister, usually by obtaining the signatures of several elders or trustees of the church. The argument for this requirement was that membership in a church serviced by a part-time minister should not relieve one’s full obligation to support public worship. Such requirements were particularly burdensome on members of smaller and informal religious societies and those, like the Methodists, who relied on itinerant or lay clergy. Town residents who did not maintain a church membership or who failed to satisfy the certificate requirements were assessed in support of the officially recognized church.4

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As discussed earlier, in drafting the Vermont Constitution of 1786, the state legislature had amended a 1777 provision calling for the public support of religion, with new language providing that “no man ought, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience.” This language should have ended the state’s religious establishment. However, the legislature had left intact a 1783 law that authorized towns to collect assessments and to grant certificates of exemption to religious dissenters, an inconsistency that led to a patchwork of enforcement. Despite complaints by religious dissenters, the Congregationalist majority resisted recision of the law, even though assessments were arguably no longer authorized by the constitution. Not until 1807, with the defeat of a Federalist/Congregationalist-controlled legislature and the rise of the Democratic-Republican Party did the Vermont legislature abolish all statutory authority for the collection of assessments. Vermont’s “illegal” establishment thus stood on a different legal footing than those existing in neighboring states in that the law operated in contravention of constitutional authorization. The law’s demise, led by a loose coalition of Jeffersonian Republicans and Baptists, helped to lay the groundwork for disestablishment in the remaining states.5 Connecticut (1818) and New Hampshire (1819) were the next states to fall. Disestablishment came about in both states through the efforts of similar coalitions of Jeffersonian Republicans and religious dissenters. In New Hampshire, Baptists, Universalists, and members of Elias Smith’s Christ-ian movement began agitating for disestablishment shortly after the 1800 election.6 The drive for disestablishment suffered a setback in 1803 when the Superior Court of Judicature upheld the assessment system in a lawsuit to recover a parish tax. Though holding that the Presbyterian plaintiff was improperly taxed in support of a local Congregationalist minister, the court wrote a missive on the importance of public support of religion. Chief Justice Jeremiah Smith insisted that no one should infer from the holding “that religion is a thing of no consequence to society.” On the contrary: It is declared in our Constitution that morality and piety rightly grounded on evangelical principles, that is, on the principles of the Gospel, will give the best and greatest security to government, and . . . that the knowledge of these [principles] is most likely to be propagated through society by the institution of the public worship of the Deity, and by public instruction in morality and religion.7 At the same time as it was affirming the interdependence of religion and government, the New Hampshire court disclaimed that the state maintained

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anything comparable to a religious establishment. In a passage revealing his understanding of disestablishment, Smith wrote: A religious establishment is where the State prescribes a formulary of faith and worship for the rule of government of all the subjects. . . . Here the state do [sic] neither. It is left to each town and parish, not to prescribe rules of faith or doctrine for the members of the corporation, but barely to elect a teacher of religion and morality for the society, who is maintained at the expense of the whole. Because any denomination in theory could be selected by a majority of voters, no denomination was “superior or inferior to another,” Smith declared. An establishment thus meant a preference for one religious sect; the possibility of equal support for all denominations was not an establishment.8 Smith appeared blind to the inherent inconsistencies in his opinion. Despite the putative equality of the assessment system with its exceptions for dissenters—which Smith saw as a crucial element—he dismissed claims of religious dissenters that the system as applied violated their rights of conscience. Smith insisted that, even if a dissenter was unable to obtain an exemption certificate and was forced to support the teacher of a different denomination than his own, “[h]is conscience is free, his civil rights unimpaired.” “He need not believe as the teacher or the majority believe,” Smith remarked. “He need not worship as they worship.” This was partially because the public support of religion was for the good of society, not necessarily for the benefit of religion. Still, Smith acknowledged that the system imposed a spiritual burden on a religious dissenter. It was simply “his misfortune that, in electing a teacher of religion and morality, he happens to be in the minority.” For Smith, state government could not be separated from foundational Christian principles, and the state had to employ those principles for the betterment of society. The “[p]ublic instruction in religion and morality, within the meaning of our Constitution and laws,” was therefore “a civil, not a spiritual, institution.”9 Chief Justice Smith’s opinion answered any questions about whether New Hampshire’s religious establishment conflicted with republican principles, and it helped to stall any momentum toward disestablishment. Early on, religious dissenters also received little support from the fledgling Republican Party, which had taken longer to become established in New Hampshire than in Vermont or Connecticut. Even though Republicans gained control of the New Hampshire legislature in 1804 and the governor’s office in 1805, they were hesitant to advocate for disestablishment, preferring to support religious dissenters in their claims for exemption certificates. Not until 1816, with the numerical increase in dissenting congregations and the demoralization of Federalists following the

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conclusion of the War of 1812, did Republicans feel sufficiently confident to push for disestablishment. Also the previous year, in the case of Moore v. Poole, the New Hampshire Superior Court had interpreted state law to grant tax exemptions only to official town and parish ministers, thus dispensing with the veneer of equal treatment of all denominations. With momentum on their side, Republicans and their dissenting allies proposed in 1817 a bill to abolish religious taxes, the Toleration Act. After two years of political maneuvering, the legislature finally passed the act in 1819.10 Disestablishment in Connecticut took a course similar to that in New Hampshire: it was achieved after years of agitation by religious dissenters and a change in the political winds that finally moved hesitant Republicans to support disestablishment. But Connecticut was different from New Hampshire. The state was the bulwark of orthodox Calvinism: home to Yale College (referred to by one Republican critic as that “laboratory of church and state”), the New Divinity theology movement, and many leaders of the Standing Order, such as “Pope” Timothy Dwight, Samuel Hopkins, Lyman Beecher, and Nathaniel W. Taylor.11 Connecticut had not experienced the level of religious dissent or diversity of its surrounding neighbors. Its establishment had deviated little from the Saybrook Platform (1708), which had closely aligned the authority of the state and the Congregational Church, despite providing tax exemptions for Episcopalians and Quakers in 1727 and 1729, respectively. And, unlike the other new states (with the exception of Rhode Island), Connecticut declined to draft a constitution upon independence but continued to operate under the authority of its colonial charter. In contrast to the situation in the other New England states, Connecticut’s political and judicial leaders were not forced to reconcile its existing establishment with constitutional provisions professing religious equality.12 Several developments between 1783 and 1818 helped to bring about disestablishment in Connecticut. According to William McLoughlin, between the Revolution and 1818, the number of dissenting churches and adherents grew exponentially; whereas Baptists had accounted for only nine churches and 450 adherents in 1760, by 1810 those numbers had swelled to fifty-five churches with 5,700 adherents. Membership in Episcopalian and Methodist churches also increased, such that by 1818 the dissenting churches outnumbered the Congregational churches.13 Partially in response to this growing religious pluralism, the Connecticut legislature in 1784 repealed the Saybrook Platform and enacted a new certificate system that extended the exemption from religious taxes to bona fide members of all denominations, not merely to Episcopalians, Quakers, and Baptists. Seven years later, the legislature further liberalized the certificate system, allowing dissenters to file their own certificates rather than

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obtain one at the discretion of a justice of the peace. Baptists still objected to being required to file any certificate with authorities (either justices of the peace or clerks of the local Congregational church), and Baptist leader John Leland authored several tracts advocating a greater separation of church and state, one having the colorful name The Rights of Conscience Inalienable, and Therefore Religious Opinions Not Cognizable by Law or, the High-Flying Churchman Stripped of His Legal Robes Appears a Yahoo (1791).14 In calling for disestablishment, Leland did not argue merely for a political uncoupling or for equal treatment of all denominations; rather, he attacked the underlying assumptions of the Standing Order about the necessity of religious support for civil society: The certificate law supposes, 1. That the legislature have power to establish a religion. This is false. 2. That they have authority to grant indulgence to non-conformists:—this is also false; for religious liberty is a right and not a favor. Is uniformity of sentiments, in matters of religion, essential to the happiness of civil government?—Not at all. Government has no more to do with the religious opinions of men, than it has with the principles of the mathematicks. Let every man speak freely without fear—maintain the principles that he believes—worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in so doing.15 That the changes to the certificate system meant only toleration of dissenting sects, and not religious equality, was reinforced by the Standing Order’s insistence that the Congregationalist establishment retain its legal and social preferences. Congregationalist clergy represented a privileged and powerful class: their salaries and lands were exempt from taxation, only they could perform marriages, and their opinions on matters moral and political went unquestioned.16 Also, the Congregationalist clergy controlled the educational system: town primary schools were run by local Congregationalist clergy; Yale College, that bastion of orthodox Calvinism, received tax support from the state; and the Congregationalist clergy resisted calls by Episcopalians for public support for their fledgling academy.17 The privileged position of the Congregationalists became an issue during a controversy over the sale of western lands in 1795. As initially enacted by the legislature, receipts from the sale were to go into a perpetual account to fund the “Ecclesiastical Societies Churches or Congregations of all denominations,” and, secondarily, “Schools of Education,” both of which would have enhanced the position of the Congregationalist clergy. For two years, the legislature resisted amending the law despite charges

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of preferential treatment of Congregationalists, finally acquiescing to create a perpetual school fund from the proceeds.18 As the Appropriation Act controversy demonstrates, the Congregationalist clergy essentially held a stranglehold on the state and local political establishments, and by the time of John Adams’s election, they were Federalists almost to a man. Within the Connecticut Federalist Party, the clergy were the largest and most powerful block, sometimes choosing the party’s political leadership.19 Lyman Beecher later candidly acknowledged the political power of the Standing Order clergy in his Autobiography: The ministers had always managed [political matters] themselves, for in those days the ministers were all politicians. They had always been used to it from the beginning. On election day they had a festival. All the clergy used to go, walk in procession, smoke pipes, and drink. And, fact is when they got together, they would talk over who should be governor, and who lieutenant-governor and who in the upper house, and their counsels would prevail.20 Thus, in spite of providing an exemption for religious dissenters under the certificate system, Connecticut maintained one of the more entrenched religious establishments, which gave preferential treatment to Congregationalist churches and awarded political power to Congregationalist clergy. One opponent described it as a “smothering establishment of religion.” This inequitable system, together with the controversy over the Appropriation Act, led to the birth of the first serious political opposition (which evolved into the state Republican Party) and helped to engender an anticlericalism in that party’s members that would continue through disestablishment in 1818.21 Growing agitation for greater religious equality if not disestablishment led Judge Zephaniah Swift to include a defense of the existing system in his treatise A System of the Laws of the State of Connecticut (1795). Swift was a former member of Congress, a liberal Congregationalist, and also a supporter of the existing Standing Order. Still, his defense of his state’s system had more of an apologetic quality than that of New Hampshire’s Chief Justice Smith. Swift wrote that Connecticut had previously maintained a religious establishment, which he characterized as having been a “more mild and tolerant establishment, than that with which [the settlers] had been acquainted” in Britain. With the repeal of the Saybrook Platform and the passage of the certificate laws of 1784 and 1791, the notion of a religious establishment had “exploded.” Although the state legislature might not have so intended, Swift wrote, yet here is a compleat renunciation of the doctrine, that an ecclesiastical establishment is necessary to the support of civil government.

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No sect is invested with privileges superior to another. No creed is established, and no test act excluded any person from holding any offices in government.22 For Swift, an establishment—something he defined as providing exclusive support and preferences—no longer existed in Connecticut. Because all dissenters were entitled to receive certificates to exempt them from paying for support of the Congregational Church, Swift argued that concerns about religious conscience had been met: “the people are left to their own freedom, in the choice of their creed, and the mode of worship.” Swift also believed that, notwithstanding the presumption in the law that gave Congregational churches all remaining taxes, there was a “levelling [of ] all distinctions and placing [of ] every denomination of christians equally under the protection of the law.”23 But Swift was also responding to the orthodox Calvinists who were bemoaning the loss of piety and financial support through the liberalization of the law. There were some, Swift wrote, who “imbibed the false principle that government cannot exist without a civil establishment of religion”: It will be found in all countries that ecclesiastical establishments have subjected mankind to a despotism that has largely contributed to their distress. . . . In this state, since the rejection of our ecclesiastical establishment, religion has become more flourishing, government more energetic, and the people more peaceable. These considerations must demonstrate the important truth, that a religious establishment is not necessary to the support of civil government, and that religion left to itself, will produce the happiest influence on civil society.24 Swift still had to reconcile his understanding of disestablishment with the laws providing for the public support of worship, including assessing taxes to pay for church buildings and Christian ministers. Swift insisted that the “settlement of ministers is merely a civil regulation” and was for the benefit of civil society, not to advance religion. The 1791 law was “passed for the purpose of promoting the public good,” and there was “an inherent right of the legislature” to enact such salutary laws.25 While the legislature had no right to prescribe “the ceremonies, the creed or the discipline of a church,” where a people agreed upon the truth of a peculiar religion, the legislature could “step in to their aid, and enact laws that are necessary to enable them to support public worship in a manner agreeable to their consciences”: The legislature without establishing any religion, has considered christianity to be the religion of the people, and has enacted laws to

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authorize the people to maintain public worship, in the manner which they deem proper. No mode of worship is prescribed, no creed is established, no church discipline enforced. In point of principle there is no coercion. . . . Every christian may believe, worship, and support in such manner as he thinks right, and if he does not feel disposed to join public worship, he may stay at home and believe as he pleases, without any inconvenience, but the payment of his tax to support public worship in the located society where he lives.26 Thus, for Swift, “[t]he agreement of settling a minister, tho binding on the [religious] society, is merely a corporate or political transaction, and by no means involves a personal obligation upon the honor and consciences of man.” Rather, it was like a private contract, and “because the majority governs . . . a man may be legally subjected to a contract to which he never assented.” As Mark McGarvie has demonstrated, Swift was reconceiving the role of still-publicly-supported churches and religion from public institutions into private ones. Whether Swift realized it, his nuanced defense of Connecticut’s establishment helped to further its demise by deemphasizing the public role of churches.27 Swift’s treatise, though clearly an apologia for the new status quo, demonstrates the variety of opinion over what constituted an “establishment” in the late 1790s. Swift and Leland would have agreed that coerced assessments and preferential treatment constituted an establishment, though they would have parted on what constituted a coercive practice or a religious preference. Swift, the lawyer, was also willing to accept the legal fiction that the certificate system somehow neutralized the coercive aspects of an assessment system. And Swift, like most moderate supporters of the establishment, viewed the public support of religion chiefly as serving civil society, for the benefit of all. But to the growing number of religious dissenters, Baptists, Universalists, and Methodists— many without regular ministers and thus ineligible for certificates—the system was still coercive and favored the dominant Congregationalists. Despite the availability of an exemption certificate, Baptists and other dissenters, who came primarily from the lower and working classes, resented the certificate requirement and the preferences enjoyed by the dominant Congregational elite. They remained dissenters in the eyes of the law and society.28 In 1801, the Danbury Baptist Association launched a petition drive to the state legislature seeking repeal of the certificate laws. Its petition coincided with Thomas Jefferson’s election as president and a resurgence of the state Republican Party; initially, though, the Baptists did not associate with the Republicans out of suspicion of their rationalist leanings. During this five-year drive, the Danbury Association wrote to Jefferson, seeking moral support for

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their cause and noting that the religious privileges they enjoyed existed only as “favors granted and not as inalienable rights.” “Religion is at all times a Matter between God and Individuals,” the association wrote, and “no man ought to suffer in Name, person or effects on account of his religious Opinions.”29 Jefferson, who during the preceding election had been viciously attacked by the Standing Order for his rationalist beliefs, responded with his now-famous Letter to the Danbury Baptists, pronouncing the metaphor of “a wall of separation between church and state.” Religion was “a matter which lies solely between man and his God,” Jefferson echoed, and because man owed “account to none other for his faith and worship, . . . legislative powers of government [should] reach actions only, and not [religious] opinions.” No doubt, Jefferson viewed his response as an occasion to make a salvo against his nemeses in the Standing Order. At the same time, he unquestionably saw it as an opportunity to elaborate his view on church-state separation, and the letter was carefully worded and vetted for public consumption by his attorney general, Levi Lincoln. Postmaster General Gideon Granger, a Connecticut Republican who also reviewed Jefferson’s response in advance of its mailing, enthusiastically replied that “[i]t is but a declaration of Truths which are in fact felt by a great Majority of New England, and publicly acknowledged by near half the People of Connecticut.” Though likely exaggerating the strength of popular sentiment, Granger, like Jefferson, understood the importance of the response in the looming battle between Connecticut’s religious dissenters and the Standing Order over disestablishment. He wrote that Jefferson’s answer “will undoubtedly give great Offense to the established Clergy of New England while it will delight the Dissenters.” Granger urged Jefferson not to change a sentence or sentiment, hoping that the “temporary Spasm among the Established Religionists” would in turn help to “germinate among the People . . . their political Tenets,” leading to greater religious and political reform.30 Although few Connecticut Baptists shared Jefferson’s more expansive views on church-state separation (with the possible exception of John Leland), the sentiments expressed in his letter reflected a common perspective that united the Baptists and Republicans: matters of faith and worship were beyond the legislative powers of government; and the privileges and political power of the Congregationalist clergy violated church-state separation. Even the defenders of Connecticut’s “mild establishment,” like Judge Swift, would have agreed that government lacked authority over matters of religious conscience. The rub was whether the support of public worship for the “public good” went beyond the authority of government and/or violated rights of conscience. That opinions varied, even among Republicans and religious dissenters, over the power of government to take cognizance of religion and provide for public morality

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does not negate the ongoing separationist impulse of the early nineteenth century. Too much significance can be placed on discrete differences of opinion so as to obscure the continuing appeal and vitality of the Jeffersonian principle.31 The Federalist-controlled Connecticut legislature rejected the Baptist petitions as well as calls for drafting a state constitution. But their intransigence to religious and political reform had the effect of uniting the Baptists and the Republican Party. Baptists still remained suspicious of the Republicans’ deism and anticlericalism and Republicans in turn were uncomfortable with the Baptists’ evangelical piety, but greater distrust of the Federalist-Congregationalist alliance kept the two groups together. The Federalists controlled the Connecticut legislature until 1816 and were able to fend off all efforts for disestablishment. But the Federalist-Congregationalist alliance was on increasingly shaky ground. Gradually, Methodists, Universalists, and liberal Congregationalists (likely unitarian in belief) became disaffected from the Standing Order’s increasing sectarianism.32 Lyman Beecher, for one, demonstrated the Standing Order’s elitism and insensitivity to the dynamic situation by delivering two sermons in 1814 that praised Connecticut’s Puritan past and the existing religious establishment that favored Congregationalists. In “The Building of Waste Places,” Beecher criticized the certificate exemption law and panned dissenters’ claims of religious coercion. The practical effect of the exemption, Beecher insisted, “has been to liberate all conscientious dissenters from supporting a worship which they did not approve . . . and to liberate a much greater number, without conscience, from paying for the support of the Gospel anywhere.” While the exemption “accommodates the conscientious feelings of ten,” Beecher argued, “it accommodates the angry, revengeful, avaricious, and irreligious feelings of fifty; and threatens, by a silent, constant operation, to undermine the deep-laid foundations of our civil and religious order.”33 To Beecher, it was a “vital principle” that “every man shall pay according to his property for the support of religious instruction,” which he insisted was a “public civil benefit.” Moreover, that necessary public instruction in religion could only be accomplished effectively through an educated ministry, Beecher continued in “An Address to the Charitable Society.” In a statement that caused offense to Baptists, Methodists, and other evangelical groups with lay clergy, Beecher declared that “[i]lliterate men have never been the chosen instruments of God to build up his cause.”34 Beecher’s sermons were circulated widely and criticized in the Republican press as confirming “Congregational schemes” to remain in power while keeping down Baptist, Methodist, and Episcopal churches “at any cost and all hazards.” The Connecticut government “is and has been for a long time a combination of men of one sect in politics and one sect in religion, firmly bent on

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their own promotion and relying on the union of Church and state to bear down all opposition,” wrote the American Mercury in September 1816.35 Disestablishment came finally to Connecticut in 1818. The Federalists and their Congregationalist allies had lost face through their opposition to the War of 1812 (and through the former’s flirtation with treason in the ill-fated Hartford Convention that had considered New England’s secession from the union). The breaking point came in 1816, however, when the Episcopal leadership abandoned the Federalists over a funding dispute and threw in their lot with the Republicans. The two groups formed the Toleration Party with a chief platform of abolishing the remaining religious establishment. The Toleration Party won the governor’s seat and the lower house in 1817 and a complete sweep in the March 1818 election. The legislature then called for a convention to draft a state constitution to replace the old colonial charter. The new constitution included an article in its Bill of Rights, Article VII, that provided that “every society or denomination of Christians . . . shall have and enjoy the same equal powers, rights and privileges,” and that “no person shall by law be compelled to join or support, nor be classed with, or associated to any congregation, church, or religious association.”36 Disestablishment was not a by-product of the movement for constitutional and political reform, however; it was its chief catalyst. And based on Connecticut’s history as having the most socially and politically integrated religious establishment, the drive for disestablishment represented not just the formal abolition of the assessment system but a rejection of the moral claims upon which the establishment had rested.37 A resigned but still intransigent Lyman Beecher later recounted the events in his Autobiography, blaming disestablishment on the Episcopalians, religious dissenters, “infidels,” Republicans, and “the rabble,” but refusing to accept any of the blame himself. The “minor sects had swollen” in membership and had “complained of favoritism” and “of having to get a certificate to pay their tax where they liked,” Beecher wrote. “So the democracy, as it rose, included nearly all the minor sects, besides the Sabbath-breakers, rum-selling tippling folk, infidels, and ruff-scuff generally, and made a dead set at us of the standing order.” Beecher also acknowledged, without apology, that “our efforts to enforce reformation of morals by law made us unpopular; [and] they attacked the clergy unceasingly, and myself in particular . . . with all sorts of misrepresentation, ridicule, and abuse.” Beecher maintained that he worked “as hard as mortal man could” to stem the tide, but the “cause of Christ” was overcome; “[i]t was as dark a day as ever I saw.”38 Writing two years after disestablishment, however, Beecher was more reflective. Though at the time the events had caused him “great depression and suffering,” he now believed that disestablishment was “the best thing that ever

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happened to the State of Connecticut. It cut churches loose from dependence on state support [and] threw them wholly on their own resources and on God.” The “tax law had for more than twenty years really worked to weaken us and strengthen [our opponents],” Beecher acknowledged. Now, the animosity between denominations was gone, opening the way to “a time of revival as never before in this state.” Yet Beecher still wanted his readers to appreciate the significance of the passing of the Connecticut establishment: “Take this revolution though, it was one of the most desperate battles ever fought in the United States. It was the last struggle of the separation of Church and State.”39 The final “desperate battle” for disestablishment took place in Massachusetts. As discussed in a previous chapter, the Massachusetts Constitution of 1780 formalized the unevenly enforced multiple establishments of the late colonial period. Article III constitutionalized the previous statutory requirement that every town collect taxes for the support of a “public protestant teacher . . . of piety, religion and morality,” making the mandate permanent and giving the arrangement renewed vigor. The constitution purported to guarantee the equality of all Christian denominations with “no subordination of any one sect or denomination to the other.” In reality, it effectively cut back on the freedoms of Baptists, Quakers, and other dissenters by removing the previous exemption from paying the taxes and requiring them to file certificates of membership in a dissenting church, to which their assessment would then be paid. For those who failed to file a certificate or who lacked membership in a religious body, their taxes went to support the locally settled public teacher of religion, invariably a Congregationalist minister. Finally, the 1780 constitution reaffirmed the symbolic importance of the state’s ecclesiastical establishment, asserting that the “public worship of GOD” and “instruction . . . into piety, religion and morality” were indispensable for “the good order and preservation of civil society.” What Massachusetts lacked in an entrenched Standing Order clergy, as in Connecticut, it made up for in its invigorated constitutional system.40 Several factors led to gradual disestablishment in Massachusetts. As in Connecticut, some of the factors were cultural and political: the growth in dissenting church membership (Baptists, Methodists, Universalists) and the rise of the state Republican Party, which advocated greater religious equality though it balked at outright disestablishment until the end. As William McLoughlin has written: [Even though the Republicans] frequently used the phrase “religious liberty” as a political war cry in Massachusetts, they did not mean by it what the [religious] dissenters did. For Republican politicians it

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meant primarily liberty from clerical support of Federalist policies. . . . The Republican Party was born, flourished and died in Massachusetts without ever advocating Jefferson’s position on disestablishment.41 The Republicans attacked the inequity of the system and those who benefited from it, but they did not challenge its core. Criticism of the assessment system by religious dissenters like Isaac Backus and his successors also kept proestablishment forces on the defensive. The fundamental inequity of the assessment system, which favored the Congregational churches while sometimes resulting in distraint or the imprisonment of dissenters for refusing to pay ministerial taxes, kept the matter in the public eye. But the more important factors leading to disestablishment in Massachusetts were—appropriately, considering its constitutional shoring—legal developments spurred on by a theological split within the Congregational Church. In Massachusetts, the transition to disestablishment was less ideologically driven than in other states.42 As soon as the 1780 constitution was enacted, legal controversies arose over the operation of the assessment system. The drawback to a more formalized system was that the legislature and courts were required to settle questions over the requirements for obtaining certificates of exemption, the ease with which a person could transfer membership from a Congregational church to a dissenting church, and whether the availability of a certificate depended on the incorporation of a dissenting church, the ordination of its minister, or his fulltime status. Also, the Massachusetts courts had to decide who chose the settled public minister or teacher (and thus controlled the local establishment): the active members of the dominant church or the residents of the larger town or parish. All of these controversies exposed the preferential nature of the state’s “mild and equitable establishment,” highlighting the inherent inconsistency between an assessment system and true religious equality, while increasing the number of converts to disestablishment. But it was the resolution of the last controversy in favor of towns over churches—which effectively transferred power from the orthodox trinitarian Congregationalists to the more liberal unitarian Congregationalists—that ultimately led to the demise of the system. Fortunately, these controversies are documented in several important court decisions between 1785 and 1833. In addition to marking the evolution of the law governing the last remaining establishment, the cases also reveal the variety of attitudes about the relationship between the state and religion generally.43 An early legal challenge to the Massachusetts establishment involved John Murray, a leader in the fledgling Universalist movement; the issue of tax exemption for members of unincorporated churches; and the ability of the

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clergy of the dissenting churches to perform marriages. Although the Massachusetts Standing Order could barely tolerate the insurgent Baptists and Methodists, Universalism challenged the theological underpinnings of trinitarian Congregationalism through its rejection of core Calvinist doctrines, particularly predestination and eternal damnation. Murray founded in 1779 the Independent Church of Christ of Gloucester, which purposely set itself up as a voluntary religious association without seeking legislative incorporation; the church also declined to ordain Murray. In 1783, several church members sought to have their parish taxes applied toward their own church as provided for under Article III of the Constitution. The tax assessors rejected the applications on the ground that the church was not a bona fide dissenting body and proceeded to distrain the taxes. As the church members were contemplating an appeal, the local sheriff arrested the non-ordained Murray for performing illegal marriages.44 The Universalists appealed both issues to the Massachusetts Supreme Judicial Court, sitting with a jury, in 1785. Murray was represented by James Sullivan, a future attorney general and Republican governor of Massachusetts; the parish was represented by Theophilus Parsons, a future chief justice of the supreme judicial court who would write several of the crucial opinions that would bring about disestablishment. Sullivan argued for an expansive reading of Article III, one that required only proof that the applicants held different beliefs from that of the settled church; however, the justices accepted Parsons’s narrow interpretation of the clause, instructing the jury that taxes could be applied only to a minister who had been elected by a corporate body. Sullivan claimed that such an interpretation effectively excluded “Episcopalians, Baptists, Quakers, Presbyterians and Sandemanians [Unitarians], from all benefits arising from the third article.” On the second question, Parsons argued that, regardless of incorporation, Murray could not qualify as a “teacher of piety, religion [and] morality” because his belief in universal salvation undermined public morality. The jury ignored the judges’ instruction, however, returning a verdict that Murray was entitled to the taxes from his parishioners, regardless of incorporation. Because the jury failed to settle the issue about the legality of his ministry, Murray sought reconsideration of both questions. The following year, two members of the supreme judicial court reversed themselves, now ruling that the constitution should be interpreted to be of “a most liberal kind” to permit teachers of “any persuasion whatever” to receive the taxes of their parishioners. Chief Justice William Cushing noted that the holding would likely lead to the proliferation of sects and the inability of some parishes to agree on a settled minister and fulfill their obligation to maintain public worship; however, the constitution’s antisubordination clause was intended to provide equality for

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dissenting faiths. Even though the court held that Murray’s church was entitled to the taxes of its parishioners, it held that Murray was still disqualified as a minister to perform marriages due to his lack of ordination, thus leaving in doubt the ability of some dissenting ministers to receive the tax assessment.45 For some reason, the Murray decision carried little precedent, and local officials continued to deny recognition to unincorporated churches and to distrain members’ property to pay for taxes. Some dissenting churches succumbed to pressure, seeking incorporation and ordaining their ministers to be consistent with the Cambridge Platform, but a few stood on principle. Ongoing litigation led the Massachusetts General Court in 1800 to repeal the previous laws and enact a comprehensive statute governing assessments. But that new law proved not up to the task. It affirmed that only incorporated towns and parishes were subject to the constitutional requirement to collect taxes for the support of public worship and settled ministers, omitting any mention of unincorporated societies and their ability to receive ministerial taxes. It also reaffirmed procedures for obtaining exemptions from paying taxes, but this involved filing certificates with local assessors, something that Baptist dissenters in particular found offensive. Though the privileges under the 1800 law technically were available to all incorporated churches, it chiefly reaffirmed the status quo favoring Congregational churches.46 Two events of significance occurred in 1807 that added momentum to the growing dissatisfaction with the Massachusetts establishment. The first event, the case of Avery v. Inhabitants of Tyringham, presaged the looming schism between unitarian and trinitarian Congregationalists over the selection of settled ministers and possession of meetinghouses. In 1803, the majority of the residents of Tyringham voted to dismiss their town minister, Joseph Avery, who had been the public religious teacher of the town and Congregational church since 1788. Avery, backed by a minority of church members, sued for his salary, winning at trial and on appeal. The town argued that Article III vested both the duty and authority on towns to provide for public worship, including the selection and payment of a public religious teacher, and for the purposes of the constitution, the town and parish were legally indistinguishable. All three justices of the supreme judicial court read that authority narrowly, with Justice Isaac Parker declaring that the town’s authority over ministers existed only upon a vacancy. Taking a slightly different approach, Chief Justice Parsons argued that, even though the constitution secured to towns “the exclusive right, at all times, of electing their public ministers,” he noted that the town had not yet rejected relying on the “ancient usages” of church members electing public ministers.47 The decision, while acknowledging that the constitution distinguished between town or parish inhabitants and church

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membership, with ultimate authority for maintaining the local establishment resting with the former, temporarily propped up the Congregationalist establishments by making it more difficult for a town with a dissenting majority to change the status quo. Lest there was any doubt as to the court’s inclinations, Justice Theodore Sedgwick added a defense of the establishment system contained in Article III: In language strong and energetic, the religion of Protestant Christians is established. Liberty of conscience is secured. Provision is made for the support and maintenance of public Protestant teacher[s] of religion and morality. The exclusive right of electing their public teachers, and of contracting with them for their support and maintenance, is guaranteed to religious societies; and it is made their duty, at their own expense, to make suitable provision for the institution of the public worship of God.48 During the same year that the supreme judicial court was announcing its strong support for the existing establishment, Republicans won control of both houses of the legislature and elected as governor James Sullivan, the attorney who had defended Murray and other religious dissenters. Now in power, Massachusetts Republicans publicly criticized the inequity of the system and, chiefly, the tax support for the settled Federalist Congregationalist ministers who used their quasi-public and religious positions to rail against Jeffersonian policies. But they did not share Jefferson’s philosophical antipathy for the public support of religion generally; nor did they call for dismantling the state establishment, as some religious dissenters wished. At least initially, the Republican elite, including Sullivan, Elbridge Gerry, and Levi Lincoln, did not actively align themselves with the religious dissenters, the majority of whom came from the lower and working classes. McLoughlin notes that Republican leaders “were ready to aid persecuted dissenters in specific instances. . . . And they made glowing speeches against instances of clerical oppression and bigotry. But they never advocated separation of church and state.”49 Despite their ambivalence, Sullivan and the Republicans pushed a religious liberty bill, or Worship Bill, in the legislature in 1808 to rectify some of the inequities of the 1800 law, in particular to facilitate the ability of voluntary religious societies to receive their assessments. But the Republicans lacked backbone and flinched at accusations that they were advancing an “Infidel Bill.” As unitarian Congregational minister and Republican activist the Reverend William Bentley wrote: “The increase of the sects must eventually make this law necessary. But the fury of the opposition was great especially by such men as wished to sound a religious alarm against the Republicans.” Those accusations

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came primarily from the Federalist Congregationalists. Although Congregationalists were experiencing a growing rift between trinitarian and unitarian factions, they “agree[d] only in one point,” Bentley noted. “[T]hat is, they rest upon the establishment of Parish laws.” Allowing for more equitable distribution of the assessment proceeds would threaten the power and financial security of all Congregational churches, whatever the variety. So, despite Republicans controlling both legislative houses and the governorship, the “Infidel Bill” lost on a reconsideration vote. Whether as a result of the failure of the Worship Bill or not, Republicans were voted out of office in 1808.50 Not all events worked against the liberalization of the state’s “mild establishment.” In 1808, the Massachusetts Supreme Judicial Court affirmed through a series of cases that the 1800 law protected the ability of people to transfer membership to dissenting churches, much to the chagrin of the settled churches which lost the financial support. Chief Justice Parsons wrote in Thaxter v. Jones that because the constitution prohibited subordination of any denomination of Christians and prohibited the legislature from denying the incorporation of new churches, the law must also “give liberty to any of the members of [the standing church] to recede from it.” Importantly, the court also held that the newly converted were not required to prove conscientious scruples to gain the privilege: “Men of liberal minds may, with a good conscience, attend indifferently the public worship of different denominations, and may elect their denomination from mere local convenience, or for other good causes.”51 The following year, however, the high court rejected the claim of a Baptist minister for his share of the assessment on grounds that his two churches were not incorporated and he was not properly ordained, such that his half-time status at each church could not free his parishioners from their full obligation to support public worship. The court viewed the claim as a threat to the stability of the system, with Chief Justice Parsons warning against any “mischievous construction” that would allow parish members to “withdraw their annual contribution intended for the support of the parish minister, to supply themselves with teachers for half a year, or perhaps for a month.”52 This latter holding affected both Baptists attending small churches without full-time clergy and the growing number of Methodist churches with their itinerant circuit riders, and it set the stage for the second significant court holding, Barnes v. First Parish in Falmouth, in 1810. Barnes involved the issue of whether a Universalist minister was entitled to the ministerial taxes assessed against two of his members but given to the local Congregational church. Barnes’s church was not incorporated by the legislature, something neither the constitution nor the 1800 law required and a question the court in Murray had appeared to resolve in favor of dissenting churches.

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But Chief Justice Parsons, the prosecuting attorney in Murray some twenty-five years earlier, took the opportunity in Barnes to clarify the law and, at the same time, to defend the establishment against its critics. Barnes stands as the strongest apologia for religious establishments of any American legal decision.53 The specific issue in Barnes was whether the constitution required incorporation in order for churches to participate under the assessment system and receive the benefits of Articles II and III. For Parsons, this issue led to the fundamental question about the official role of religion in civil society. The object of civil government, Parsons began, was for the promotion and security of the happiness of its citizens. But that goal could not be achieved without an understanding of “our moral duties,” which enabled humankind to “comprehend all the social and civil obligations of man to man.” Even “wise laws” could not instill or oblige the performance of the necessary duties: Civil government, therefore, availing itself of its own powers, is extremely defective; and unless it could derive assistance from some superior power, whose laws extend to the temper and disposition of the human heart, . . . wretched indeed would be the state of man under a civil constitution of any form.54 Fortunately, Parsons continued, the people of Massachusetts “were not exposed to the threat of choosing a false and defective religious system.” Instead, Protestant Christianity had long been recognized as the superior system, its “divine authority admitted,” resting on “immortal truth” and containing “a system of morals adapted to man.” The people collectively had adopted and patronized this religion by setting up an establishment, but one “liberal and consistent with the rights of conscience on religious subjects.” This establishment, according to Parsons, necessitated the public’s instruction in religion and morals, which could only be accomplished by public religious societies “known in the law, [and] formed by the public authority of the state.” Only legally recognized societies could accomplish this important task, and only they could receive public support.55 Parsons’s opinion provided a legal and philosophical justification for the establishment, but he still had to reconcile the freedom of conscience, equal protection, and antisubordination provisions of Articles II and III. Parsons was up to the task, noting that no one was compelled to attend any religious instruction to which he conscientiously disapproved; as a result, “the first objection seems to mistake a man’s conscience for his money, and to deny the state a right of levying and of appropriating the money of the citizens, at the will of the legislature, in which they all are represented.” Directing his argument toward the Baptists and other conscientious objectors, Parsons insisted:

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The great error [in their argument] lies in not distinguishing between liberty of conscience in religious opinions and worship, and the right of appropriating money by the state. The former is an unalienable right [protected by the constitution]; the latter is surrendered to the state, as the price of protection.56 Moreover, the dissenters could not claim that the system had the goal of advancing any one religion nor that they did not benefit from its operation. “The object of public religious instruction is to teach . . . a system of correct morals among the people, and to form and cultivate reasonable and just habits and manners.” Thus, the establishment advanced civil society, not religion, and all members of society benefited from its operation. With respect to the clause requiring that all moneys paid for the support of public worship be “uniformly applied to the support of the public teacher or teachers of [one’s] own religious sect or denomination,” Parsons maintained that it applied only to Protestant ministers of incorporated churches. In so holding, he gutted much of the meaning out of Article III’s equal protection and antisubordination clauses, which he claimed were only for the purpose of preventing an ecclesiastical hierarchy.57 Finally, Parsons responded to the claim that establishments usurped religion for the benefit of the state, violating Christian teachings against erecting a “temporal domination” of religion. Parsons denied that the state’s founders intended to create a Christian state authorized to enforce Christian doctrine. But “the faith and precepts of the Christian religion are so interwoven that they must be taught together.” “Our constitution certainly provides for the punishment of many breaches of the laws of Christianity,” Parsons wrote, “but not for the purpose of propping up the Christian religion, but because those breaches are offenses against the laws of the state.” The state was not usurping any authority it did not already possess as a civil government, and the operation of the establishment was solely for the benefit of all members of society.58 Parsons had hoped that his Barnes opinion would settle the question over eligibility to participate in the assessment system and provide a philosophical basis that would perpetuate the establishment for years to come. But his argument of why the tax system respected rights of conscience went against the growing consensus that had led to disestablishment in eleven of the states, and it convinced few people in Massachusetts. Parsons’s narrow reading of the guarantees of religious equality and nonsubordination also highlighted the tension in a system that professed an agnosticism toward, but kept a keen interest in, the theological content of public religious instruction. Despite the constitution’s declaration of religious equality in Massachusetts, the Standing Order was not prepared to risk the existence of civil society on such an experiment.

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More immediately, the holding threw the status of unincorporated dissenting churches into limbo, as it tied the ability to receive incorporation to how closely the legislature would examine whether each church conformed to the greater purposes behind Article III. In the end, though, Barnes turned out not to be the legal life preserver of the establishment that Parsons had hoped but the last significant victory for the supporters of the status quo. In 1810, the same year as the Barnes decision, the Republicans regained power in Boston with Elbridge Gerry being elected governor. The following year, the legislature passed the Religious Freedoms Act, partially in response to the Barnes decision. The act effectively reversed much of Parsons’s sweeping opinion. Justifying its necessity on giving meaning to the nonsubordination and equal protection clauses, the act affirmed the right of every person to have his assessment paid to the church or society of his choice, regardless of its corporate status. Also seeking to rectify Murray and Thaxter, the act provided that a dissenting minister’s eligibility to receive taxes would rest on whatever ordination his church recognized and was not dependent on the number of churches he served. Finally, the act relaxed the requirements for the filing of an exemption certificate that would ensure that one’s assessment was paid to his own religious society. The combination of these provisions effectively allowed all dissenters to avoid paying taxes to support the locally dominant Congregational churches. In many respects, the 1811 act not only reversed the narrow judicial interpretations of Articles II and III but expanded on those provisions.59 The impact of the 1811 act on the law and the consternation it caused for the Massachusetts Standing Order were indicated by an 1817 case, Adams v. Howe, which required the supreme judicial court to apply the new law for the first time. Daniel Adams was a member of the unincorporated Baptist society of Barre, which was served by a minister only once a month. He sued after the town assessors distrained his cow as payment to the local Congregational church.60 Chief Justice Isaac Parker, who had joined in the Barnes decision, held for Adams, but only after expressing considerable regret. Parker reiterated the above facts, which previously would have mattered, but acknowledged that they were now immaterial under the act, which “expressly puts corporate and unincorporated societies upon the same footing.” But Parker could not withhold his disdain for the new law: We are well aware of the great inconveniences, and the injury to public morals and religion, and the tendency to destroy all the decency and regularity of public worship, which may result from a general application of the indulgence granted by the legislature, in

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that statute, to all persons who may choose to associate, and withdraw themselves from the regular and established religious societies in towns and parishes, which, being by law obligated to support public teachers, may thus have their means and power so much diminished.61 Parker viewed the act as undercutting the ability of towns to fulfill their obligation of public worship and instruction, and thus as a threat to the establishment itself. “The mischief to be dreaded is the breaking up of the parochial religious establishments, by authorizing any number of individuals to withdraw themselves, in the easy and loose way which is provided in this act.” As a supporter of the Standing Order, Parker believed that the act set up a false conflict between rights of conscience and the support of public worship. But if members of the legislature, “with a view to secur[ing] the rights of conscience, pass laws, within the letter of the constitution, which may have a tendency injuriously to affect the regular public worship, it is not for the judiciary power to control their course.” The court’s duty was “to give effect to such acts of the legislature as they have the constitutional authority to make, without regarding their evil tendency or inexpediency.” Quite clearly, the justices had a difficult time disregarding the presumed “evil tendency and inexpediency” brought on by the liberalization of the law. The justices also astutely recognized that a religious establishment, with its promotion of public religion, could not long stand if all faiths were able to lay equal claim to religious truth and public support and could satisfy society’s “depend[ence] upon piety, religion and morality.”62 The Adams case should have led to the demise of the Massachusetts establishment; the system was irrevocably damaged by the court’s affirmation of the Religious Freedoms Act’s requirements. But the combination of the act and the Adams decision gave many dissenters what they had long wanted, which had the immediate effect of reducing pressure for further change. Likely, Adams would have eventually led to disestablishment had it not been for a more immediate crisis, not one involving dissenters attacking the establishment from without but a schism within the Standing Order itself. The division between the more liberal unitarian and more orthodox trinitarian Congregationalists had been brewing for many years. Controversy over the growth of unitarianism at Harvard, which trained most Congregationalist ministers, had led trinitarians to establish Andover Theological Seminary in 1807. In many parishes, disaffected unitarians left the settled Congregational church, joining with the dissenting Baptists, Methodists, and Universalists to constitute the majority of town residents. In other towns, the unitarian faction constituted the majority within the settled church, forcing disgruntled trinitarians to bite

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their lips or, in larger towns, to establish “second churches.”63 Issues over who controlled the “first churches”—the town majority or church majority—and who had the power to select the ministers had been at a low boil for a long time. Article III appeared to assign the obligation and authority for public worship on the towns or legal parishes, but the Avery decision had cast that authority into doubt. Yet, slowly, the court came to recognize the superior authority of the towns over ecclesiastical matters. In Burr v. Inhabitants of Sandwich (1812), involving an attempt by a parish to reduce the salary of or remove the settled minister, the court affirmed that the ultimate power rested with the residents of the parish, not the church members. A “parish and church are bodies with different powers,” Chief Justice Parsons wrote. The church members had “no power to contract with or to settle a minister, that power residing wholly in the parish, of which the members of the church, who are inhabitants, are a part.” As a result, the parish could call an ecclesiastical council to inquire into whether the Reverend Jonathan Burr had adopted “a new system of divinity,” and it could not be blocked from doing so by the church members.64 Although Burr involved a dispute over authority and church property between unitarian and trinitarian factions, the crisis took on additional significance after the unitarians took steps in 1819–1821 to establish a separate denomination. With the ante raised, the court’s consideration of Baker v. Fales, or the Dedham Case, in 1820 became the watershed for establishment in Massachusetts. The dispute arose over the selection of a minister for the First Church of Dedham between the unitarian faction, which constituted a majority of the town residents, and the trinitarian faction, which constituted a majority of the church members. The town majority chose the candidate from Harvard, leading the trinitarian majority to withdraw and organize a church of their own. The trinitarians then sued for possession of the church building, claiming to be the rightful church. The court held that not only did the town have the authority to select the settled minister, but also that church members held title to the church property only as trustees for the parish. When the trinitarian “church” seceded from the parish, it lost any right to the church property. According to the court, both the constitution and prior practice established that “the members of the church, who withdrew from the parish, ceased to be the first church in Dedham, and that all the rights and duties of that body, relative to property intrusted to it, devolved upon those members who remained with and adhered to the parish.” In essence, that “body, which is to be considered the first church in Dedham, must be the church of the first parish in that town.” The decision confirmed that the settled, established churches in several towns were not under the control of the same traditionalist Congregationalists who had benefited most from the establishment. It also raised the specter that those

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now-dissenting trinitarians might be required to support financially the worship and instruction of the unitarian members who had the backing of the town residents—either that or formally break from the church and become a dissenting religious society. None of the alternatives was palatable.65 The ramifications of the Dedham Case were not immediately apparent to most trinitarians. In the winter following the decision, the commonwealth held a constitutional convention to amend the 1780 document, spurred on by pressure from Maine residents who wanted to form a new state. Federalists acceded to the separation with a mind to jettison the Republican-leaning province as a way of preserving their Federalist empire. The delegates attending the convention constituted a “who’s who” of Massachusetts and American politics: John Adams, Daniel Webster, Levi Lincoln, Justice Joseph Story, and state justices Isaac Parker and Lemuel Shaw. A chief point of discussion was what to do with Article III and the existing establishment. The delegates split three ways over the issue of disestablishment, although not evenly: traditionalists sought to preserve what they could of the status quo; moderates like Story and Judge Joseph Varnum sought to reform the existing system; and a handful called for outright disestablishment. At this point, both trinitarians and unitarians supported the continuation of some form of establishment. Three related issues confronted the delegates: the ongoing state relationship with unitarian Harvard College; the abolition of the religious test oath; and whether and how to amend Article III.66 After voting to reorganize the Harvard board of overseers and to repeal the test oath, the delegates turned to competing proposals to leave Article III unchanged, to write the provisions of the 1811 act into the constitution, or to make the support of religious societies completely voluntary. The latter proposal lost by a vote of 136–246, and Justice Story had to work diligently to include language in the article extending coverage to unincorporated churches.67 Story’s most significant proposal, however, was to clarify that the privilege of having one’s ministerial taxes paid to one’s own church, as provided in the 1811 act, extended to both unitarian and trinitarian Congregationalists, whichever happened to be on the losing end of a schism dispute. Story, a conservative unitarian, saw this solution as the only way to maintain the establishment; otherwise, both factions would oppose paying religious taxes when they constituted a minority of a particular town or parish, quickly leading to disestablishment. The convention adopted Story’s proposal, along with a proposed repeal of the requirement of church attendance. It also exchanged the word “protestant” with “christian” to modify those “public teachers” entitled to public support. The proposed changes to Article III would have made Massachusetts an even milder establishment, albeit one that still acknowledged the state’s role in

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providing for “public instruction in piety, religion and morality.” When sent to the voters, however, the proposed amendment to Article III failed overwhelmingly, with only the repeal of the test oath requirement passing.68 The failure of the 1820 amendments to Article III represented the last nail in the coffin of the establishment, although it managed by sheer inertia and Federalist control to exist for another thirteen years. But the effect of the Dedham Case decision and the fact that trinitarian Congregationalists lacked the same privilege as members of dissenting churches to have their taxes paid to their own societies caused discontent among those who only recently had been the privileged beneficiaries of the state establishment. Based on the authority of the Dedham Case, approximately a hundred church buildings changed from trinitarian to unitarian hands between 1820 and 1834, even though unitarians usually constituted less than half of a particular church’s membership. Trinitarian Congregationalists accused the unitarians of “plundering” their churches, but to no avail. This state of affairs gradually drove trinitarians to conclude that a religious establishment was no longer workable. Increasingly, whether motivated by desperation or conviction, Congregationalist ministers began to identify the voluntary support of religion as the only form consistent with religious liberty. Even arch-Calvinist Lyman Beecher, who had moved to Boston from Connecticut in 1823, conceded that disestablishment was necessary to protect the church against the control of the nonchurched.69 Also after 1820, with the failed reforms to Article III and Massachusetts now standing as the last remaining church-state, Baptists, Methodists, Universalists, and other religious dissenters renewed their calls for complete disestablishment based on conscience claims. Only Congregationalist unitarians remained solidly behind the establishment. Beginning in 1829, petitions calling for the abolition of all religious taxes were filed in the legislature. Some of the petitions raised ideological arguments; others, primarily pragmatic ones. The legislature considered the petitions between 1831 and 1833, with the house voting for an amendment to Article III in 1831 only to have the measure defeated in the senate. Pressure from the coalition of Baptists, Congregationalists, and Universalists mounted, and the senate finally conceded to submitting the amendment to a plebiscite, and in November 1833, the last remaining establishment was undone by a 10–1 vote of the people.70 With disestablishment in Massachusetts, Beecher’s aphorism about the “last struggle of the separation of church and state” had finally been realized, not in a dramatic climax but as a result of a gradual progression, fueled more by self-interest than by commitment to a principle. Still, the process of political disestablishment that had begun almost sixty years earlier was finally complete. With it, the first American disestablishment came to an end. But full

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disestablishment had not been achieved; both legal and cultural disestablishment still lay ahead. By the 1830s, the significance of the final political disestablishment for the culture was minimal. Formal establishments by the early antebellum era were already anachronisms. Even long-standing supporters like Lyman Beecher had come to realize that such systems were no longer necessary to ensure the nation’s religious piety and that the structures likely stood in the way of fulfilling the millennial visions of a truly Christian America. This is not to suggest that the arguments of those who opposed the religious establishments on principle should be discounted. On the contrary, they revealed—as did the resistance to the voluntary reform societies and to the repeal of Sunday mail delivery—a lingering commitment to the ideals of Jeffersonian separation. Importantly, those ideals did not disappear with the increasing Protestant hegemony of the antebellum era. However, separationist ideals were easier to enunciate against concrete threats such as religious tax assessments. Those ideals became more abstract and diffused when they confronted the more amorphous, but no less real, cultural shift toward Protestant evangelicalism in the early nineteenth century. Over time, Jeffersonian separationism was not able to compete with the more compelling accounts of America’s Christian founding, which became increasingly popular during the antebellum era. By midcentury, concepts of the religious character of the government and of the nation’s chosen destiny had become ingrained in the culture. Led by evangelical leaders and historical revisionists, public attitudes had been transformed over a span of thirty years from a view of the Constitution and government as based on secular principles to one where the founding documents and the republic itself were sanctified by God. The providential and millennial impulses of the colonial and revolutionary periods, although far from dominant in the creation of the republic, had been perpetuated and readapted to fit within the expanding evangelical framework of the antebellum period. But whereas contemporaries of the founding period had generally been able to distinguish the religious and secular attributes of the new republic, such distinctions became blurred following the War of 1812. Antebellum evangelical clergy and revisionist historians seized upon the latent providential themes and religious discourse common in the earlier periods and molded them into a convincing myth of America’s Christian nationhood that fit neatly within many people’s conception of America as a specially chosen land. Even secular publications succumbed to the myth. In an 1858 editorial entitled “Providence in American History,” Harper’s New Monthly Magazine added its voice to the chorus by pronouncing the inspired nature of the nation’s

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founding and the sacred quality of the Constitution. Embracing the myths perpetuated by the revisionist historians, the editorial declared that the Constitution was the result of “a higher wisdom, a profounder foresight, a remoter purpose, than ordinarily characterizes the best works of men.” The drafters were more than merely inspired or led by God; they were “servants of a higher will than their own; men who unconsciously did a work far more magnificent than they understood.” The form of government they created, with its pure and sublime principles, could only have come about through divine intervention. These religious influences meant that the Constitution “has a moral meaning, a sacredness, over and above what political science and civil compacts can ever give to the organic law of a commonwealth. It takes its place among the instrumentalities of Providence.”71 America was thus a Christian nation in the fullest sense of the phrase: divine Providence had guided the settlement of America and had directed, not merely informed, the framers in the formation of the government. Christianity served not only as the founding principle upon which the Constitution was based but also as the basis for all of the laws and enactments at all levels of government. America was thus the ideal example of “Providence as God’s method of administering the affairs of the world.”72 Regardless of whether Harper’s view represented the attitude of a majority of Americans during the late antebellum period, the concept was sufficiently vague so that most people could agree with some aspects of the editorial’s claims. The idea of America as a Christian nation had become part of the nation’s mythology and was too compelling to be ignored.

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PART III

Legal Disestablishment

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5 Legal Christianity Conceived

The Christian Religion is Part of the Law Itself. —Taylor’s Case (1676) The nineteenth-century movement toward more complete disestablishment—one that not only severed formal ties between church and state through the abolition of religious assessments and preferences but also realigned cultural and institutional relationships encountered another area of resistance: the law. The law, in this instance, was not the constitutional law that authorized ministerial taxes or imposed religious tests for office holding. Those legal aspects, as represented by Article III of the Massachusetts Constitution, disappeared with the end of political disestablishment in 1833 (albeit, limited requirements that public officeholders profess a belief in God or the Christian religion persisted in many states into the twentieth century). Rather, this “law” involved aspects of state statutory and common law that reflected and reinforced Christian principles—most commonly, Sabbath laws, blasphemy and profane swearing laws, and court rules affecting one’s eligibility to take an oath, to serve as a juror, or to testify as a witness in judicial proceedings. Acting as a backdrop for such laws was the historical maxim that “Christianity was part of the common law.” Not only did this maxim legitimate religiously reinforcing laws; it also reminded jurists and public officials of the law’s obligation to work in harmony with Christian principles. For many, the maxim symbolically

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represented the common law’s religious or higher-law origins and its eternal qualities, which in turn legitimated the law as an institution. Throughout the first half of the nineteenth century, the idea that Christianity was part of the common law impeded the secularization of the law and the movement toward greater disestablishment.1 Yet the law was not static. At the same time, American law struggled to create an identity separate from eighteenth-century British common law. During this period, the law faced tremendous social and financial pressures to adapt and evolve, substantively and as an institution. Territorial expansion and settlement, industrialization, an expanding market economy, and the rise of business and commercial enterprises all drove the law to modernize and transform itself. As described by Morton Horwitz, between ratification of the Constitution and the Civil War, attitudes toward the law shifted from viewing it as representing a body of essentially fixed principles to being an instrument to achieve socially desirable results. With this transformation, the law became less concerned with identifying and reinforcing eternal principles, becoming areligious. By midcentury, the maxim that Christianity was part of the common law had lost favor, and laws regulating blasphemy, oaths, and Sunday conduct had either been abandoned or transformed to reflect secular rationales. In contrast to cultural disestablishment, which would take until the mid-twentieth century to achieve, legal disestablishment would effectively be complete by the end of the nineteenth century. Although it would be a slow and involved process, the gradual secularization of the law was a major factor in the second disestablishment of the nineteenth century.2

European Origins of the Maxim The idea that Christianity was part of the common law had both general and specific origins. On one level, the maxim can be traced to notions that “higher law” or “divine law” principles underlay the law. Higher-law concepts taught that there were fixed and immutable standards of justice and fairness that were superior to all human-made laws. Originating during the classical period, higher law found expression most often in discussions of natural law. Unlike positive law, which arose through conscious enactments by a sovereign, preexistent natural law was discovered through the use of reason, moral sense, or revelation. Natural law could originate from a variety of sources, such as custom or simply human reason or, as the Stoic Marcus Cicero asserted, from a mystical source. Cicero wrote that natural law was “unchanging [and] everlasting,” and while it could be viewed as being derived from “right reason,” it also

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came from “God, who is the author of this law, its interpreter, and its sponsor.” By identifying a divine source for natural law, Cicero parted with earlier classical philosophers who viewed natural law in a descriptive sense, as dependent on the empirical observation of natural causes, rather than having prescriptive elements reached through deductive reasoning.3 During the Middle Ages, Catholic scholars rediscovered natural law and, despite its various classical forms, quickly associated it with the “law of God.” Building on works by Augustine, Thomas Aquinas identified an eternal or divine law that underlay all other forms of law. Aquinas viewed natural law as a subset of eternal law, describing the former as law “that God instilled into man’s mind so as to be known by him naturally,” the latter word being another term for unaided human reason. Divine law, in contrast, was acquired through revelation and scripture. Aquinas’s own distinctions among divine law, eternal law, natural law, and human (positive) law are not as important here as his more general belief that all law was to some degree derived from a divine source and subject to its eternal principles. Natural law came to be seen as arising primarily from the scriptures and God’s will, though reason remained a tool for perceiving its commands.4 Distinct higher-law impulses first appeared in the writings of British jurists during the late Middle Ages, primarily through the influence of lawyers trained in canon law, such as Henry de Bracton, a justice on the King’s Bench during the reign of Henry III. In a familiar passage, Bracton drew on higher law by declaring that the king was not omnipotent but “subject to God and to the law.” Two hundred years later, Sir John Fortescue advanced a similar notion of a fundamental law anchored in God’s will by asserting that the king could not abrogate those laws “which were the gift of God to man in his creation.”5 Higher law became a dominant concept in British common law through the efforts of three influential jurists: Christopher St. Germain, Sir Edward Coke, and Sir Henry Finch. St. Germain, a barrister of the Inner Temple, wrote The Doctor and Student in the 1530s. The book traced a series of fictional dialogues between a doctor of divinity and a law student about notions of equity and divine law. Prior to its publication, divine-law concepts had been viewed as applying primarily in the area of equity. The Doctor and Student showed in a popular form how higher-law concepts applied not only to fundamental principles of justice but also to day-to-day law. St. Germain sought to demonstrate that the law of England was based squarely on the law of God: “law eternal is called the first law,” he wrote, “for it was before all other laws, and all other laws be derived from it.”6 Coke, lord chief justice under James I, advanced the idea of divine principles underlying the law by writing in Calvin’s Case (1610) that the “law of nature is that which God at the time of creation of the nature of man

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infused into his heart (which is also the moral law).” This natural/higher law, Coke asserted, was prior and superior to “any judicial or municipal law in the world,” “immutable,” and “part of the laws of England.” Lord Coke, like William Blackstone, exercised significant influence on the early American bar, especially on conservative jurists such as James Kent and Joseph Story.7 Whereas St. Germain and Coke wrote in general terms, it was Sir Henry Finch’s 1627 treatise, Law or a Discourse Thereof, that popularized the idea that Christianity formed part of the common law by claiming that all types of law (including the common law) were founded on “holy scripture.” Finch made the claim based on an apparent mistranslation of a 1458 decision, Bohun v. Broughton, in which the plaintiff had sued the bishop of London at common law to enforce jus patronatus, the right of a patron to name a clergyman for a post. Judge Prisot had held that, in order to resolve the controversy, he had “to give credence to such laws as they of the holy church have in ancient writings; for it is common law on which all kinds of law are founded.” Writing more than a century and a half later, Finch mistranslated Prisot’s Latin opinion, substituting the words “Christian Bible” for Prisot’s phrase en ancien scripture (“ancient writings”), thus establishing legal authority for the claim that the common law incorporated Christian scripture and doctrine. Almost 200 years later, Thomas Jefferson and Joseph Story would engage in an esoteric dispute over the significance of Finch’s mistranslation.8 The first legal decision to firmly articulate the maxim that Christianity formed part of the common law was a 1676 British conviction for blasphemy, Taylor’s Case. Yeoman John Taylor had reputedly uttered such vile and offensive words about the Christian religion that local officials had first considered him to be insane. After the keepers at Bedlam hospital assured the authorities of his sanity, Taylor was tried and convicted of blasphemy before the King’s Bench. In passing sentence, Lord Matthew Hale asserted that Taylor’s words had not only offended God and the Christian religion but had also subverted the laws and government itself. “For to say, Religion is a Cheat, is to dissable all those Obligations whereby the Civil Societies are preferred,” Hale wrote, then added for good measure that because “Christianity is parcel of the laws of England . . . to reproach the Christian Religion is to speak Subversion of the Law.” Taylor was fined, pilloried three times, and required to provide sureties for the remainder of his life, which ensured his indefinite imprisonment.9 Lord Justice Hale’s pronouncement in Taylor’s Case commanded such authority that some fifty-three years later the same court upheld a similar conviction based solely on the ground that Christianity formed part of the common law. The defendant in Woolston’s Case had published several discourses questioning the miracles of Jesus and, when prosecuted, claimed that Christianity

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could not be part of the law because the common law was the same as it had been before the Reformation when such offenses were under the jurisdiction of church courts. Woolston’s counsel argued that it would be “a very dangerous tendency” to permit blasphemy prosecutions “in the Temporal Courts, since it may give occasion to the carrying on of prosecutions for a meer difference in opinion, which is tolerated by law.” The justices summarily rejected Woolston’s defense, with the court reporter writing that they “would not suffer it to be debated whether to write against Christianity in general was not . . . punishable at common law.” Lord Justice Hale had settled the matter in Taylor’s Case: “Christianity in general is parcel of the common law of England,” Chief Justice Raymond asserted, “and therefore to be protected by it.” So as to remove any doubt as to the close connection between the two, Raymond added that “whatever strikes at the very root of Christianity, tends manifestly to a dissolution of the civil government.”10 According to one British commentator, the pronouncements in the Taylor and Woolston cases that Christianity was part of the common law established a “permanent legal doctrine” in England. Courts relied on the doctrine in several later cases. In 1727, a defendant charged with exhibiting two obscene books, The Nun in Her Smock and The Art of Flogging, claimed his actions were not prohibited under the law. Relying on Taylor’s Case, the court convicted him anyway, declaring that “religion was part of the common law; and therefore whatever is an offense against that, is evidently an offense against the common law.” Twenty-five years later, chancery refused to enforce a £1200 bequest to pay for the daily reading of the Torah, finding that it was “for the propagation of the Jewish religion . . . in contradiction to the Christian religion, which is a part of the law of the land, which is so laid down by Lord Hale and Lord Raymond.”11 By the time of William Blackstone, the verity of the maxim was beyond dispute. In his Commentaries (1765), Blackstone noted almost casually that blasphemy, as well as other offenses against God and religion, were punishable at common law by fine and imprisonment because “Christianity is part of the laws of England.” Blackstone cited the Taylor and Woolston cases without any further discussion. As late as 1827, a British court would write that the common law “is founded in our holy religion, and no law can be good which is not.”12 The American publication of Blackstone’s Commentaries in 1772 introduced a new generation to the relationship between natural law and the common law, as well as to the maxim of Christianity forming part of the common law. Despite Blackstone’s positivist leanings, which led him to qualify the practical applications of natural law, his Commentaries reaffirmed the idea of a preeminent higher law. Blackstone agreed that natural law was “dictated by

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God himself” and was “of course superior in obligation to any other [law].” Natural law predated all positive law and was eternal and immutable such that “the creator himself in all his dispensations conforms.” At the same time, Blackstone distinguished natural law, which was discoverable through reason, from divine or revealed law, which was found only in the holy scriptures. Both forms emanated from the will of God and were “part of the original law of nature.” But revealed law, while holding greater authority than natural law or positive law, had less application to daily human affairs. There were “a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty,” Blackstone wrote, and “herein it is that human laws have their greatest force and efficiency.” Still, the ultimate authority for all law was the divine law of nature. By the time of the American Revolution, over 2,500 copies of Blackstone’s Commentaries had been sold to the American bar, making the treatise more popular in America than in England, in turn serving to introduce a new generation of lawyers to higher-law notions.13

Higher Law in America As in Britain, the American notion of Christianity being part of the common law had its basis in both general understandings of higher law and specific applications of the maxim based on the early British cases. Higher- or divinelaw concepts in America can be traced in part to the Puritan legal codes of midseventeenth-century New England. The biblically centered Puritans believed that divine law, as revealed primarily through the Decalogue and Pentateuch, served as the authority and model for all laws. The Massachusetts Puritans wrote a succession of codes based in varying degrees on the Bible. The first, entitled “Moses His Judicials” (1636), written by the Reverend John Cotton, lifted passages and phrases from the Old Testament and contained scriptural citations for the various offenses. It sought “to show the complete sufficiency of the word of God alone to direct his people in judgment of all causes, both civil and criminal.”14 Cotton’s code was never enacted, but in 1641 the general court adopted the Body of Liberties, written by the Reverend Nathaniel Ward, who also was a lawyer trained at the Inns of Court. Like Cotton’s proposed code, the Body of Liberties relied heavily on the Old Testament, with numerous provisions containing biblical phrases and scriptural cross-references. One offense provided that, if “any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death,” and it cited Deuteronomy 13:6 and 10 and Exodus 22:20 as authority. The Body of Liberties differed from Cotton’s code in that it was much more comprehensive, and in

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several areas, such as alienation of land and inheritance, it relied primarily on British law and local custom. Finally, in response to complaints that the Body of Liberties had never been published, the general court adopted a revised, third code in 1648: Lawes and Libertyes, the first comprehensive code in the British colonies and one of the more influential legal documents of the colonial era. The criminal section, adopted almost verbatim from the Body of Liberties, was again replete with biblical citations, indicating its continued reliance on scriptural authority. Outside the criminal context, however, scriptural citations were less common, reflecting greater reliance on available British legal manuals such as Michael Dalton’s Countrey Justice, a popular handbook for English justices of the peace.15 Lawes and Libertyes proceeded on the same assumptions as its predecessors about the higher source of the law, despite its greater use of British law. While the authors of Lawes and Libertyes did not insist that their code be based on literal and “explicit divine precepts,” as John Cotton had done in his “Judicials,” they acknowledged that all law came directly from God, and man’s role was limited to interpreting and applying those directives. The Lawes and Libertyes of 1648 governed Massachusetts until the last decade of the seventeenth century. Besides controlling most internal legal matters, it also influenced the development of codes in other Puritan colonies and even in early New York. Eventually, the Glorious Revolution brought about a new charter in Massachusetts that effectively ended the biblical rule of law. In its place, the new provincial government imposed common-law practices and procedures. However, the legacy of a biblically based system of laws and the assumptions upon which it was based would continue to influence legal attitudes into the eighteenth and nineteenth centuries.16 Few colonial lawyers ascribed to the Puritans’ total integration of divine-law principles into the law, though many accepted the premise of the higher-law origins of the common law. In 1728, Maryland attorney Daniel Dulany wrote that “the Common Law, takes in the Law of Nature, the Law of Reason and the revealed Law of God; which are equally binding, at All Times, in All Places, and to All Persons.” That “revealed Law of God,” of course, was that which was contained in the Christian Bible. More commonly, eighteenth-century American lawyers perceived the common law and natural law as interchangeable and as “founded on principles that [were] permanent, uniform and universal.” Natural law was derived from a combination of sources, most of which were interrelated; however, divine law was always one of its most important founts.17 Due chiefly to the influence of Blackstone and Coke, the notion of immutable higher principles underlying the common law echoed throughout the national and early antebellum periods. In 1798, Connecticut Superior Court

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judge Jesse Root remarked that, in addition to custom and certain usages, the common law “was derived from the law of nature and revelation—those rules and maxims of immutable truth and justice, which arise from the eternal fitness of things, which need only . . . to be submitted to, as they are themselves the highest authority.” Root claimed that the common law was “the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections. . . . It is in itself perfect, clear and certain; it is immutable, and cannot be changed or altered, without altering the nature and relation of things.”18 James Wilson, an associate justice of the Supreme Court and a law professor at the College of Philadelphia, also agreed that higher law was made up of those “general and fixed rules” which the “great Creator of all things has established.” While writing that natural law, too, “flow[ed] from the same divine source . . . the law of God,” he insisted that natural law, municipal law, and the law of nations—those areas that “form . . . the objects of the profession of law”—were governed chiefly by reason, conscience, and custom.19 Finally, Nathan Dane, a benefactor of Joseph Story and author of the first comprehensive legal treatise published in America, wrote that “moral or natural law, is ‘the great unwritten law of mankind’; and being made by God himself, its known authority can never be questioned.” Like Wilson, though, Dane recognized that the “law of the land and morality” differed in many instances, especially when the law had to concern itself with “what is practicable.”20 An example of this limited view of higher law is contained in Sketches of the Principles of Government (1793), written by Vermont Supreme Court chief justice Nathaniel Chipman. Chipman sought to harmonize higher-law concepts with developing notions of utilitarianism. He asserted that, on one hand, the “laws of nature and the obligations which they impose, are as immutable as the Supreme Being by whom they are ordained.” Yet, when one stated that “the laws of nature are immutable,” Chipman insisted, “it must be understood of the laws themselves; not of their application.” Many legal theorems were “left to be discovered, as a result of the circumstances, and relations.” Even moral laws of obligation could not exist “without a regard to utility,” which was “the end and design of the law.” Expressing a perspective that could be considered a precursor to legal relativism, Chipman insisted that “[ f ]ew actions, considered simply, are evil in themselves. They are relatively good or bad. They take their qualities from situation and circumstance.”21 Finally, the U.S. Supreme Court also acknowledged the existence of a superior higher authority upon which judges could call to override state legislative will. In 1823, Chief Justice John Marshall, while discussing the weight to be given to legislatively enacted rules of decision, noted that judges could also examine “those principles of abstract

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justice, which the Creator of all things has impressed on the mind of his creature man, which are admitted to regulate, in a great degree, the rights of civilized nations.” However, Marshall failed to identify the source of this higher authority or to elaborate on the limitations of the principle.22 These divergent views of higher law indicate that there was no consensus as to the basis for, scope of, or application of immutable higher legal principles, particularly in relation to both common law and the positive law. Nathan Dane agreed with James Wilson that divine influences were limited to an abstract natural law, leaving many “arbitrary rules” that had nothing to do with morality.23 In contrast to Wilson and Dane, Maryland law professor David Hoffman wrote in 1823 that even municipal law had its “deep foundations in the universal laws of our moral nature, and, all its positive enactments, proceeding on these, must receive their just interpretation with a reference to them.” In his law lectures, Hoffman identified the Bible as the first and preeminent foundation of the law: it was “the foundation of the common law in every christian nation. . . . There is much law in it.” Thus, “[t]he christian religion is a part of the law of the land,” Hoffman asserted, and “should certainly receive no inconsiderable portion of the lawyer’s attention.”24 The two men most responsible for making higher law relevant to the American common law were James Kent and Joseph Story, the former being chief justice and then chancellor of New York from 1804 to 1823, and the latter serving as an associate justice of the Supreme Court of the United States from 1812 to 1845. Both Kent and Story had trained on Coke and Blackstone and had a deep affection for the common law. In 1810, Kent enthused on the glories of the common law: “The English system of jurisprudence had fostered the soundest and most rational principles of civil liberty.” Under the common law, “our fathers had lived and flourished” and developed “that lively sense of order, of decency, of moderation, and of right which is inculcated by its generous institutions.” For Kent, the decision of the drafters of the New York Constitution to adopt the common law was not merely a sign of their wisdom but also an indication of the influence of a providential hand.25 Kent strongly defended the higher-law foundations of the common law in his influential Commentaries on American Law. In his law lectures at Columbia College, which later became the Commentaries, Kent called on his students to have their “passions controlled by the discipline of Christian truth” and their minds “initiated in the elementary doctrines of natural and public law.” Although Kent did not give a specific lecture on natural law, he sprinkled higher-law concepts liberally throughout his other presentations. In his lecture on the “law of nations,” Kent acknowledged that international law was best governed by positive law “founded on usage, consent, and agreement.” Yet he

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urged his students not to ignore the “natural jurisprudence” foundations of international law, to “consider it as deriving much of its force and dignity from the same principles of right reason . . . and the same sanction of Divine revelation, as those from which the science of morality is deduced.” In the absence of clear guidance, international agreements were to be governed by principles “fairly to be deduced from the rights and duties of nations, and the nature of moral obligation.”26 Joseph Story was a close friend of Kent and shared many of his convictions. As a Supreme Court justice and author of a handful of popular legal treatises, Story was arguably the most influential legal figure of the first half of the nineteenth century. He was also one of the most ardent defenders of the common law and its higher-law basis. Story stressed that natural law lay “at the foundation of all other laws,” and as such was a prerequisite for an understanding of all aspects of jurisprudence, especially constitutional law and the common law.27 His definition of natural law was broad: it embraced all those rules concerning man’s duties to God, man’s duties to others, and man’s obligations to himself. Yet, for Story, the higher-law aspect of natural law was undeniably theistic: The obligatory force of the law of nature upon man is derived from its presumed coincidence with the will of the Creator. God has fashioned man according to his own pleasures, and has fixed the laws of his being. . . . He has the supreme right to prescribe the rules, to which man shall regulate his conduct, and the means, by which he shall obtain happiness and avoid misery.28 Story viewed this relationship with God as binding upon humankind, asserting that people not only owed God reverence and gratitude as “Creator” and “Benefactor,” but also “as he is our Lawgiver and Judge, we owe an unreserved obedience to his commands.” This fealty was equally required of public officials. “All magistrates are responsible to God for the due and honest discharge of their duty.”29 That this perspective had a distinctly Calvinist, covenantal flavor to it was not by mistake; in an 1828 speech to the Essex, Massachusetts, Historical Society, Story praised the contributions of the Puritans to American culture. Remarking on the “purity of their principles” that directed the Puritans “in laying the foundations of this Christian Commonwealth,” Story agreed that there were “great principles upon which all human society rests . . . some of which are of eternal obligation, [which] arise from our relations to each other, and [ from] our common dependence upon our Creator.” Though the Puritans had erred in imposing religious conformity, they were correct in their underlying belief in society’s reliance on Christianity.30

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In his willingness to identify Christianity as the true source of fundamental law, Story ventured beyond Hoffman and Kent. In his 1829 inaugural address as Dane Professor of Law at Harvard College, Story noted that natural law held an even higher sanction among the “Christian community of nations”: Christianity, while with many minds it acquires authority from its coincidences with the law of nature, as deduced from reason, has added strength and dignity to the latter by its positive declarations. It goes farther. It unfolds our duties with far more clearness and perfection than had been known before its promulgation. . . . It thus exhorts [man] to the practice of virtue by all that can awaken hope or secure happiness. It deters him from crimes, by all that can operate upon his fears, his sensibility, or his conscience. By identifying Christianity as the source of the principles underlying natural law—and, by implication, the common law—Story reinforced popular notions of the law’s incorporation of Christian principles. Christianity became, in Story’s mind, “not merely an auxiliary, but a guide, to the law of nature; establishing its conclusions, removing its doubts, and elevating its precepts.”31 Story’s early speeches and writings, though often distributed in pamphlet form, reached a relatively select audience. With the publication of his Commentaries on the Constitution of the United States in 1833, Story was able to reach the entire legal profession. And in his Commentaries, Story connected his understanding of the maxim to larger questions about the role of religion in a republican government.32 Like his friend Kent, Story did not separately address the issue of natural law in Commentaries. In his chapter concerning the “Nature of the Constitution,” however, Story incorporated natural-law concepts to disprove the notion of the Constitution as a social compact. Relying on the writings of Hume, Blackstone, and Burke, Story disputed Lockean notions that governments were founded by mutual consent and subject to the will of the people. Agreeing with Blackstone, Story asserted that “the theory of an original contract upon the first formation of society is a visionary notion.” Instead, the federal and state constitutions had always been treated as representing “a fundamental law, not as a mere contract of government” which bound only those who agreed to it and was changeable at will. It would be extraordinary, Story declared: to consider a declaration of rights in a constitution, and especially of those rights which it proclaims to be “unalienable and indefeasible,” to be a matter of contract, and resting on such a basis, rather than a solemn recognition and admission of those rights, arising from the

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law of nature and the gift of Providence, and incapable of being transferred or surrendered.33 Consequently, natural law was not important as a source of fundamental rights, as Enlightenment theorists maintained, but as the source of fundamental moral law, upon which the entire legal system relied. The Constitution was but a reflection of this permanent fundamental law which, according to Story, was derived from God. With the publication of Story’s Commentaries, the divine-law theorem for the law reached its highest American expression through its most influential spokesman.34 Story was one of the few legal thinkers of the early nineteenth century to make explicit the connection between the higher-law foundations of the natural law and Christianity. While jurists like Wilson, Hoffman, and Kent preached a theistic concept of higher law—and might have subconsciously drawn such parallels—they viewed higher law as having varying degrees of relevance to municipal law. Story, in contrast, took the Coke-Blackstone theorem and provided it with a specific Christian anchor. Natural law was not simply the distant source of notions of justice and fairness. Nor did the common law merely parallel Christian teachings when adjudicating notions of right and wrong. Rather, the entire authority for the law, as well as its moral suasion, were derived from higher, Christian principles that applied directly to the positive law. As will be seen, this jurisprudential view of higher law complemented the maxim of Christianity forming part of the common law and buttressed its application by judges throughout the antebellum period.

Christianity Becomes Part of American Law The Hale-Raymond maxim of Christianity’s incorporation into the common law had been part of Anglo-American jurisprudence since the late seventeenth century. William Blackstone’s restatement of the maxim in his Commentaries, however, popularized the theorem among American lawyers and eventually led to its judicial application in the U.S. Blackstone included the maxim in his discussion of blasphemy, and his definition of that offense is helpful in understanding his view. Blackstone listed blasphemy as one of eleven “Offenses against God and Religion” that were punishable in British courts. He defined it as denying God’s being or providence, making “contumelious reproaches of our Saviour Christ,” or “profane scoffing at the Holy Scriptures” by “exposing it [sic] to contempt and ridicule.” These offenses were punishable, Blackstone maintained, because “Christianity is part of the laws of England.”35

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Blackstone distinguished blasphemy from apostasy, heresy, and other “offenses which strike at . . . the doctrine and discipline of the Church of England in particular.” Not that he believed those offenses should not be punished at law; on the contrary, apostasy in particular threatened judicial oaths (which relied on a belief in a future state of punishments and rewards) and was appropriately made a criminal offense. Rather, unlike those primarily religious offenses, blasphemy was “punished by our municipal law” because “the temporal courts resent the public affront to religion and morality, on which all government must depend for support.” An essential element of blasphemy, therefore, was the deleterious effect the offense had on the public’s respect for the foundations of government. This public affront element, absent in other religious offenses, made blasphemy essentially a civil offense as distinguished from those religious offenses punished by civil courts under the ecclesiastical establishment. Blackstone’s clarification was supported implicitly by the Taylor and Woolston cases, cited as authorities in the Commentaries, the former of which had held that “blasphemous words [are] not only an Offense to God and Religion, but a Crime against the Laws, State and Government.” Broadly conceived, the offense included such intellectual affronts as Thomas Paine’s The Age of Reason as well as the “inferior” offenses of “profane and common swearing and cursing.” This emphasis on blasphemy as a crime against the state would ensure that both the offense and the maxim would remain viable legal concepts following disestablishment.36 Blackstone’s identification of the maxim with blasphemy thus indicates that he understood the maxim to be chiefly a civil one. Although the maxim implied that courts were to protect Christian teachings and practices “from contempt and ridicule” and to enforce Christian standards of behavior—either of which could be seen as benefiting Christianity itself—its chief purpose was to ensure an orderly society and public respect for a civil government implicitly endorsed by God. Because the law depended on higher-law principles for its ultimate authority, the maxim additionally meant that Christianity became the ultimate standard not for mere notions of right and wrong but for all public acts. Blackstone thus viewed Christianity’s incorporation in two distinct senses. Under the first sense, which benefited religion and society equally, the law protected the true religion from public affront and applied Christian standards for determining modes of behavior. At a more significant level, Christianity served as the ultimate authority and legitimizing agency for both the law and civil government. In both contexts, the maxim indicated an interrelationship between Christianity and the state and meant that Great Britain and, by implication, America were legally Christian nations irrespective of any official religious establishment.37

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The earliest reported case in America to embrace the maxim was the 1796 Maryland decision of Runkel v. Winemiller. William Runkel, a German Reformed pastor, was expelled from his pulpit and parsonage following eight years of ministry after allegations arose that he had never been ordained by the controlling synod. Unable to convince the church elders to rescind their decision, Runkel sought a writ of mandamus from the state court of appeals to restore him to his former position. Unconcerned that it was interjecting itself into an internal church dispute, the Maryland court granted Runkel his mandamus on the basis that Christianity could not “be diffused, and its doctrines generally propagated” if the law did not protect the rights of ministers of the gospel. Under “our form of government, the Christian religion is the established religion,” the court declared, likely referring to the inoperable provision in the Maryland Constitution. But with Maryland lacking an assessment system, the court’s understanding of an establishment was primarily rights-enhancing, with it declaring that “all sects and denominations of Christians are placed on the same equal footing and are equally entitled to protection in their religious liberty.” Nonetheless, the court found that the state’s interest was greater than simply ensuring ministers their day in court. Runkel’s dismissal threatened the stability of religious institutions and of civil society itself: “Religion is of general and public concern, and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people.” The ultimate application of the maxim in Runkel was relatively benign, however, holding that civil law protected the putative rights of clergy.38 The first significant application of the idea that Christianity formed part of the law took place in an 1811 New York case, People v. Ruggles, in a decision written by Chief Justice James Kent. The defendant, a man we know only by the name of Ruggles, had been convicted of “wickedly, maliciously, and blasphemously” uttering false and scandalous words concerning Jesus Christ and the Christian religion, to wit: “Jesus Christ was a bastard, and his mother must be a whore.” Because the state of New York did not have a statute criminalizing blasphemy, Ruggles claimed his conviction was invalid.39 Kent disagreed, holding that Ruggles could be charged with blasphemy in the absence of an authorizing statute because Christianity was part of the state’s common law: “Christianity, in its enlarged sense, as a religion revealed and taught in the Bible, is not unknown to our law.” Essentially, Kent held that Christian principles could serve as a substantive basis for a common-law cause of action: The people of this state, in common with the people of this country profess the general doctrines of christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not

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only . . . extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or injurious to the tender morals of the young, than to declare such profanity lawful.40 Kent saw that more was at stake than protecting religious sensibilities, however; moral discipline and virtue, “which help to bind society together,” were essential interests of civil government. Blasphemy struck at the heart of these values, as well as at Christianity itself, and “whatever strikes at the root of christianity, tends manifestly to the dissolution of civil government.” Kent thus adhered closely to the Coke-Blackstone model, holding that Christianity was part of the common law in the sense that it defined moral obligations and served as the historical foundations for the law.41 Kent’s opinion went further than was necessary to uphold the conviction. He could simply have ruled that New York had adopted the common law at statehood and that blasphemy had been one of the offenses punishable under British common law. Likely, Kent realized that he needed a stronger basis for his holding in order to reconcile it with the constitutional provisions protecting religious practice and disestablishing religion. Predictably, Ruggles’s attorney had insisted that those provisions barred his client’s prosecution. So Kent championed the maxim while he minimized the constitutional protections. Kent wrote that, while people were guaranteed the “free, equal, and undisturbed, enjoyment of religious opinion,” they were not entitled to revile, “with malicious and blasphemous contempt, the religion professed by almost the whole community.” The framers of New York’s constitution “never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of law.” But ultimately, in Kent’s view, only Christianity, not religion in general, had protected status under the law. The state was not required to protect other religions or to prosecute affronts to “Mahomet” or the “grand Lama.” On the contrary, the law “assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors.” Since Christianity alone was incorporated into the very substance of the law, the state, including the judiciary, could strike at anything that threatened to undermine Christianity’s privileged status. Kent upheld Ruggles’s conviction and penalty of three months’ imprisonment and a $500 fine, which in all likelihood meant that Ruggles languished in jail, unable to pay his substantial fine.42 People v. Ruggles is a seminal case in early antebellum jurisprudence reflecting the notion of an interrelationship between Christianity and the law. It also

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demonstrates the variety of attitudes toward disestablishment and their connection to the maxim. Consistent with the dominant belief among Federalist judges, Kent believed that religion—or more particularly, Protestant Christianity—was necessary for virtuous government and the maintenance of social order. His opinion also set out the argument that government’s recognition and patronage of religion were not inconsistent with republican principles or the disestablishment of religion. Even though “the [state] constitution ha[d] discarded religious establishments,” Kent wrote, “it d[id] not forbid judicial cognisance of those offenses against religion and morality which have no reference to any such establishment.” So, for Kent, the maxim and understandings of disestablishment were intertwined, and his interpretation of the latter had to be read consistently with what he viewed to be the underlying foundation for the law.43 Chief Justice Kent’s discussion in Ruggles became the most authoritative and cited exposition on the maxim that Christianity served as a basis for the law. More significantly, Kent’s decision fully Americanized the maxim and removed any doubts as to its application in a nation whose documents spurned an official religion. Due to Kent’s stature as one of the nation’s leading jurists, Ruggles quickly became a persuasive authority in later controversies implicating the legal enforcement of religious obligations.44 Following the Ruggles case in 1811, two additional blasphemy prosecutions took place in New York in 1821 and 1823. In the former case, the defendant had been indicted for stating that “Jesus Christ was a damn’d fool.” In charging the jury, the municipal court expressly relied on Chief Justice Kent’s decision as authority: the Ruggles decision had “settl[ed] the law on the subject.” In the latter case, where the defendant was prosecuted for saying that “God Almighty is a whoremaster, the Virgin Mary is a damned whore, and Jesus Christ a bastard,” the prosecution’s reliance on the maxim was implicit. As it so happened, the defendants in both cases were acquitted, which might say more about jurors’ hesitancy to convict for commonly heard utterances than about judicial disagreement with the crime or its religious foundation.45 Kent’s influence among the bar could not prevent his political opponents from challenging his rendition of the maxim. During the New York Constitutional Convention of 1821, Erastus Root, a leading reform-minded Democrat, proposed an amendment providing that “the judiciary shall not declare any particular religion to be the law of the land, nor exclude any witness on account of his religious faith.” With now-Chancellor Kent in attendance, Root criticized the Ruggles decision, claiming its language effectively made Christianity the established religion by law. Democrats, at least, saw an inconsistency between the maxim and notions of church-state separation.46 The attack on Ruggles put Kent, the state’s highest and most respected judge, in the awkward position of

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publicly defending his decision. Instead of mounting a vigorous defense, however, Kent offered an inconsistent explanation that raised questions about the way in which Ruggles was being interpreted. Kent told the convention that he had “never intended to declare Christianity the legal religion of the state, because that would be considering Christianity as the established religion, and make it a civil or political institution.” Instead, he had merely meant to affirm that “Christianity was, in fact, the religion of the people of this state, and that fact was the principle of the decision,” an observation that he contended was not novel. As support, Kent pointed out that the New York legislature had “repeatedly recognized the Christian religion, not as the religion of the country established by law, but as being in truth the actual religion of the people of this state.”47 Although he maintained otherwise, Kent’s response represented a retreat from the declarations in Ruggles, where he had claimed that the law expressly recognized Christianity, a principle he had deemed consistent with disestablishment. As a result, his defense presents a dilemma for historians. On one level, the statement could represent what Kent had always meant in Ruggles. This explanation is unlikely as Ruggles was praised by contemporaries like Story and expanded in later decisions during Kent’s lifetime. Kent never contested these later interpretations. It is also possible that Kent’s later statement was simply a calculated response to appease his Democratic critics, who were also seeking a restructuring of the judiciary. The final possibility is that Kent’s views on the matter might have moderated by 1821. Subsequent correspondence between Kent and Joseph Story discussing the maxim suggests otherwise, however.48 While we will never know for certain, his 1821 statement raises questions as to Kent’s true feelings on the matter. Kent’s defense of his Ruggles decision was apparently effective in alleviating the concerns of Democratic critics. After initially approving Root’s amendment, the convention ultimately rejected the proposal in favor of retaining the original constitutional language. A key vote came from Martin Van Buren, leader of the moderate Democrats, who went along with the conservatives even though earlier during the debates he had disputed “that the Christian religion was a part of the law of the land.” Far from representing an affirmation of Ruggles, the episode shows early displeasure with the maxim and a realization that it was in tension with notions of disestablishment. In the final analysis, however, Kent’s qualified defense of Ruggles did little to undermine the maxim as a legal theorem, as conservative judges continued to read the decision broadly throughout the antebellum period.49 The most detailed judicial exposition of the maxim appeared in the 1824 case of Updegraph v. Commonwealth. Abner Updegraph, a member of a

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Pittsburgh debating society, was convicted of blasphemy after making the innocuous remark during a debate that “the Holy Scriptures were a mere fable.” Despite being fined only five shillings, Updegraph decided to appeal his conviction to the Pennsylvania Supreme Court as a way of challenging both the state’s blasphemy law and the maxim that Christianity formed part of the state’s common law.50 Speaking through his attorney, Updegraph claimed that the blasphemy law was inconsistent with both the Pennsylvania and federal constitutional guarantees of religious liberty. The law, Updegraph insisted, was “enacted a century prior to the adoption of the federal constitution, when religious and civil tyranny were at their height; when the decrees of the church were accomplished by the terror of civil power.” With disestablishment, blasphemy could no longer be a crime. Updegraph also declared the impracticability of enforcing such laws in a religiously diverse society, noting that many denominations considered the theological statements of other sects to be blasphemous: “The Presbyterians look upon the Unitarians as infidels; and hold their comments upon the Bible, as profanity, or in the language of the act, ‘speaking loosely of the Scriptures of Truth.’” But it was the claim that Christianity formed part of the common law that irked Updegraph the most. The maxim was an “irrelative and absurd” principle that was “consistent with the system of despotism.” Updegraph argued that the maxim should be rejected, as should all laws that relied on it for authority.51 The Pennsylvania Supreme Court was more than up to the task of defending the maxim against Updegraph’s spirited attack. Justice Thomas Duncan set the tone by initially remarking that he considered Updegraph’s remark to be a serious breach, decrying his “malicious intention” to “vilify the Christian religion.” The fact that Updegraph’s statement came within the context of a private debate made little difference: “That there is an association in which so serious a subject is treated with so much levity, indecency and scurrility, existing in this city, I am sorry to hear, for it would prove a nursery of vice, a school of preparation to qualify young men for the gallows, and young women for the brothel.”52 His contempt for Updegraph revealed, Justice Duncan then turned to the “grand objection—the constitutionality of Christianity,” which he described as “the question.” General Christianity, Duncan declared, “has always been part of the common law of Pennsylvania.” More than being simply a part of the law, Christianity was necessary for the perpetuation of the republican government upon which the legal system relied: No free government now exists in the world, unless where Christianity is acknowledged, and is the religion of the country. . . . [I]t is the

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purest system of morality, the firmest auxiliary, and the only stable support of all human laws. It is impossible to administer the laws, without taking the religion which the defendant in error has scoffed at, that scripture which he has reviled, as their basis; to lay aside these is, at least, to weaken the confidence in human veracity, so essential to the purposes of society. Because of this interdependence, no society could tolerate a “willful and despiteful” attempt to subvert its religion any more than it could bear attempts to break down its laws. Duncan asserted that it would be “liberty run mad” to prohibit punishment for blasphemy or to hold that such laws were inconsistent with the spirit of democratic government.53 Duncan, like Kent before him, saw no inconsistency between the maxim and disestablishment. He denied that the maxim led to a religious establishment, claiming that religion was incorporated into the law only in a limited sense: “not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes and spiritual courts; but Christianity with liberty of conscience to all.” This limited incorporation, however, still had the benefit of law. Somewhat speciously, Duncan also claimed that neither American nor British courts had ever persecuted diversity of religious opinion, and he insisted that every person had “the right of adopting for himself whatever opinion appeared to be the most rational, concerning all matters of religious belief; thus securing by law this inestimable freedom of conscience.”54 Duncan thus picked up Updegraph’s gauntlet by asserting that the very principle of which he complained was the same that protected his ability to hold a different religious viewpoint: “This is the Christianity of the common law, incorporated into the great law of Pennsylvania, and thus, it is irrefragably proved, that the laws and institutions of this state are built on the foundation of reverence for Christianity. Here was complete liberty of conscience.”55 Despite his claims to the contrary, Duncan’s decision indicates that he, like Kent, understood that a tension existed between the maxim and disestablishment. Unlike Updegraph, however, Duncan viewed any tension as minimal. Justice Duncan’s opinion, which relied heavily on Ruggles and the British blasphemy cases for authority, reinforced Kent’s ruling by anchoring the law firmly in Christian principles. As much as he maintained that he was advancing a tolerant view of the maxim, other language in the opinion belied that claim. Updegraph contains some of the most forceful Christian-nation language to appear in any antebellum decision. Religion and morality, Duncan insisted, were “the foundations of all governments,” without which, “no free government could long exist.” “It is liberty run mad, to declaim against the punishment of

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these offenses or to assert that the punishment is hostile to the spirit and genius of our government.” Along with Ruggles, Updegraph stands as a seminal decision in the panoply of cases that perpetuated the maxim. The precedent of Updegraph would hamstring Pennsylvania judges long after other jurisdictions had discarded all reliance on the maxim.56 Detailed discussions of Christianity’s relationship to the law appeared in two significant cases following the Updegraph decision, each offering a distinct understanding of the concept and its relation to disestablishment. In the first, State v. Chandler (1837), Thomas Jefferson Chandler had been convicted of blasphemy for uttering that “Jesus Christ was a bastard and his mother was a whore.” On appeal to the Delaware Supreme Court, Chandler challenged the constitutionality of the state’s 1826 blasphemy statute and the authority of the maxim that Christianity formed part of the common law, using as support a letter by his namesake where Jefferson had disputed the verity of the maxim (discussed later).57 Chandler’s gambit was no more successful than Abner Updegraph’s. The court upheld his conviction in an opinion written by Chief Justice John Clayton, a former U.S. senator and a jurist of some repute. In this decision, however, Clayton failed to measure up to his reputation. As Justices Kent and Duncan had held, Clayton insisted that it was “perfectly settled” that “malicious and wanton attack[s] on the christian religion” were punishable in civil courts: those “who reviled, subverted or ridiculed christianity, did an act which struck at the foundation of their civil society” and thereby “disturbed the common peace of the land.” Even though Chandler’s statements were made in the presence of other people, Clayton agreed with the Updegraph holding that the law did not require evidence that the utterances were offensive or caused a breach of the peace. Chandler could be punished because his statements threatened the “good order of society”; a showing that his language insulted others or created a public nuisance was unnecessary.58 After disposing of Chandler’s guilt, Clayton entered into a curious discussion of how Christianity formed part of the common law. Initially, Clayton suggested that Christianity was essential for the perpetuation of republican society. Alluding to the French Revolution as a time “when infidelity triumphed and the abrogation of the christian faith was succeeded by the worship of the goddess of reason,” Clayton proclaimed that “without this religion no nation has ever yet continued free.” Clayton also provided an extended rebuttal of Thomas Jefferson’s publicized letter to Major John Cartwright where the former had argued against Christianity forming part of the common law. Possibly taking his cue from Justice Story, whose criticisms of Jefferson were well known by that time, Clayton castigated the Jeffersonian interpretation as baseless.59

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Having firmly established the necessity of Christianity for republican society, Clayton proceeded to undermine the strength of his own argument and the maxim itself. The claim that Christianity formed part of the common law had been misunderstood, Clayton stated. The maxim did not mean that Christian principles were essential to the common law; rather, the phrase merely meant that the law recognized, or gave judicial notice of the fact that Christianity was “the prevailing religion of the people.”60 Because Christianity was the religion preferred by the people of Delaware, the law was obliged to punish contempt for the majority religion. Here, Clayton seemed to follow Kent’s defense of Ruggles before the 1821 New York Constitutional Convention. But Clayton went beyond Kent, insisting that there was nothing inherently special about Christianity. The citizens of Delaware could just as easily choose “Mahometanism or Judaism” as their religion, and the law would be obliged to prosecute blasphemy against those faiths, Clayton insisted. In Clayton’s mind, the common law was neutral toward religion, similar to “pure steam.” The “great object [of the common law] is to preserve the public peace and good order of society, without dictating what religion will best sustain it.” Clayton concluded: [T]he christian religion is part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for the courts are bound to yield it faith and credit, and respect it as their religion.61 Chief Justice Clayton’s understanding of the maxim was at tension with the popular assumption about Christianity being indispensable for the common law and republican government. Here, the law was not founded on Christian principles; rather, it was merely the servant of the majority will and could “suit itself to the religion, the moral code and the ever varying condition of the people whenever they voluntarily prefer to change them.” Courts were necessarily “conservators of morals” but only “so far as a breach of morals may necessarily tend to a breach of the peace, and no further. . . . We know no other code of ethics than that which our laws teach us.” This last statement bordered on legal realism, implying that the law had no inherent moral content. Apparently, for Clayton, Delaware was a Christian state because the majority of its citizens professed Christianity at that particular moment. Clayton concurred that Christianity was probably the best religion for civil government, but the state constitution remained agnostic on the matter. Even though Chandler affirmed the maxim, the opinion helped to lay the foundation for considering the law to be areligious.62

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A second notable decision relying on the maxim was the 1846 Sabbath law case of City Council of Charleston v. Benjamin. Unlike the inconsistent decision in Chandler, the judges in Benjamin embraced a more traditional view of the maxim, emphasizing the uniqueness of Christianity and its interdependence with the law. Solomon Benjamin, a Jewish merchant, had been charged with selling merchandise in his Charleston, South Carolina, shop on Sundays. Unwilling to pay the $40 fine, Benjamin opted for court where he claimed that the local Sunday law violated his right to “free exercise and enjoyment of religious profession and worship” as guaranteed by the state constitution. Initially, his argument fell on fertile ground. Municipal judge William Rice, expressing “grave doubts” as to the authority of the city to pass an ordinance proscribing work on a particular religious day, declared the law unconstitutional, likely the first recorded decision striking a Sabbath law on constitutional grounds. “[I]n a community where there is complete severance between Church and State, and where entire freedom of religious faith and worship is guaranteed to all its citizens alike,” wrote Judge Rice, “the observance of any particular day, in a religious sense, is a matter of mere ecclesiastical or religious discipline and authority, and in no way pertain[s] to the civil power or legislative authority of the State.”63 This groundbreaking decision elicited an expected appeal by the city prosecutor who, sparing no argument, urged reversal on the ground that “christianity is a part of the common law [and] its disturbance is punishable at common law.” Christianity served as “the foundation of those morals and manners upon which our society is formed,” the city attorney told the state supreme court; “it is their basis.” “Remove this and they would fall, there would be no harmony, the law would be one of force.” The South Carolina Supreme Court was thus presented with a clear choice between two apparently competing principles: separation of church and state and the maxim that Christianity was part of the law.64 The South Carolina high court, speaking through Justice John B. O’Neall, chose the latter theory, reversing the lower court’s decision and reinstating the ordinance. Unlike the trial court, the supreme court had no hesitation in affirming the religious purpose of the Sunday law. Entering into an extended theological exegesis, Justice O’Neall remarked: The Lord’s day, the day of the Resurrection, is to us, who are called Christians, the day of rest after finishing a new creation. It is the day of the first visible triumph over death, hell and the grave! It was the birth day of the believer in Christ, to whom and through whom it opened up the way which, by repentance and faith, leads unto

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everlasting life and eternal happiness! On that day we rest, and to us it is the Sabbath of the Lord—its decent observance, in a Christian community, is that which ought to be expected.65 With this foundation, the outcome was inevitable: not only could the law recognize the Christian Sabbath, enforcement was required in a Christian society. “Public opinion, based on Christian morality, would not suffer [anything less].” Abolish the Sabbath and remove Christianity as the standard for morality and virtue, O’Neall wrote, and the state would “lapse into the dark and murky night of Pagan immorality.”66 Justice O’Neall could have ended his opinion there, yet he insisted on correcting Judge Rice’s misconception about the relationship between Christianity and civil government. Citing the blasphemy case of Updegraph, O’Neall declared that “Christianity, general Christianity, is, and always has been, a part of the common law.” This incorporation did not imply a “Christianity with an established church, and tithes and spiritual courts” or even the enforcement of “particular religious tenets,” O’Neall wrote, but a “Christianity with liberty of conscience to all men.”67 Despite his reference to religious equality, O’Neall maintained that public authorities could enforce Christian norms against challenges to the social order. The opening of a shop on Sunday represented the very type of threat to be quashed. The fact that Benjamin, as a Jew, did not share the same reverence for the Christian Sabbath was deemed by O’Neall to be irrelevant. The ordinance did not abridge Benjamin’s religious freedom by forcing him to close his shop on Sunday. “It does not require him to desecrate his own Sabbath. It does not say, you must worship God on the Christian Sabbath.” Instead, turning Benjamin’s religious liberty claim on its head, O’Neall insisted that it was Christianity, upon which the law was based, that afforded him the freedom to practice his religion: “What gave to us this noble safeguard of religious toleration, which made the worship of our common Father as free and easy as the air we breathe[?] . . . It was Christianity robed in light, and descending as the dove upon our ancestors, which gave us this provision.” In this context, the law did not impose any conformity of religious practice but merely required on Sunday “the cessation of public employment in the way of trade or business.”68 With the Benjamin decision, the maxim and religious justifications for behavioral laws had reached their zenith. Running throughout the opinion was the theme of America’s Christian nationhood, which was manifested in three ways. First, Christianity served as the basis for morality, which was incorporated into the warp and weft of the law. In turn, the law recognized and protected Christian customs and institutions. Second, the nation’s governing principles,

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including the ideal of religious liberty, found their origins in notions of Christian toleration; without Christianity, the American values could not exist. The survival of the nation thus depended on a vital and dominant Christianity. Third, because a majority of Americans were Christian, they were entitled to have their government protect and promote their faith. Aspects of these themes would reappear in Sabbath law and other sumptuary cases throughout the antebellum period. What is significant in these cases is that the litigants and the judges all acknowledged a tension between the maxim and issues of disestablishment and religious conscience. All of the jurisdictions in which the cases arose had officially repudiated tax support for public worship and liberalized religious disqualifications for office holding and oath taking. Most constitutions prohibited religious preferences. Yet, the judges saw no inconsistency between those provisions and the state’s patronage of Christianity by punishing violations of religious norms. That position, however, was increasingly contestable. The litigants in all of the cases argued that the maxim, as well as the specific laws, violated not only rights of conscience but also notions of church-state separation and religious equality. In time, this latter view would prevail.

6 Legal Christianity Applied

[T]he laws and institutions of this state are built on the foundation of reverence for Christianity. —Updegraph v. Commonwealth (1824) The decisions of Ruggles, Updegraph, Chandler, and Benjamin helped to establish that the idea of Christianity being part of the common law was more than an abstract legal theorem. The four cases demonstrated that the maxim had practical applications, to the detriment of the various defendants. The decisions would cast a shadow over other courts during the antebellum period as they sought to adjudicate church-state controversies. The number of decisions to openly embrace the maxim was never large, and few later holdings were as explicit in their discussions as were Ruggles, Updegraph, Chandler, and Benjamin. Yet, the run-of-the-mill cases were no less significant in reinforcing attitudes about the law’s obligation to affirm Christian principles. Stuart Banner argues that, as legal authority, the maxim was relatively ineffective: in the majority of cases where it was discussed, the ultimate holdings turned on other legal principles. On one level, Professor Banner is correct that the maxim often served as a complementary justification for a judge’s decision, though it is difficult to make that claim with respect to Ruggles, Updegraph, Chandler, and Benjamin. However, the significance of the maxim was not whether it was legally determinative but in how it reinforced

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a narrow view of disestablishment and legitimized popular belief about the government’s role in promoting religion. As one of the more important public institutions in the still-new republic, the law exerted tremendous influence on political and cultural attitudes toward church-state relations. And clearly, the maxim also affected judicial attitudes toward litigants’ claims that the law had no business in imposing religious constraints on their conduct.1 The effectiveness of the maxim can be seen in three categories of cases: blasphemy prosecutions, oath requirements, and the enforcement of Sunday laws.

Blasphemy As Ruggles, Updegraph, and Chandler attest, some of the maxim’s most profound applications came in the area of blasphemy enforcement. No more than a handful of blasphemy prosecutions were reported during the nineteenth century, with the last significant case occurring in 1837. In each case, however, prosecutors relied on some formulation of the maxim. Blackstone’s definition of blasphemy as inherently threatening civil order and exposing the institution of religion “to contempt and ridicule” presupposed that Christianity formed part of the law. Because the offense of blasphemy did not require a showing of actual disturbance or annoyance—in Updegraph, Justice Duncan demurrered to the defendant’s claim that no one in the debating society had been offended by his statement—the law had to be viewed as protecting Christianity qua Christianity and not as serving some derivative secular reason, such as maintaining public order. At the same time, as the trilogy of cases demonstrates, courts also considered blasphemy to be a per se threat to civil government and social order.2 The most notorious blasphemy prosecution of the century occurred in Massachusetts between 1833 and 1836, involving the freethinker Abner Kneeland. Even though the Kneeland trial has been well documented, the story bears repeating for its connection to the maxim. Kneeland, a disciple of Frances Wright and the Owens, had started out as a Baptist minister, drifted into Universalism, and ended up as an unyielding advocate of religious skepticism and democratic liberalism. An intractable pugilist, Kneeland was described by one opponent as a “horey-headed apostle of Satan” who did not hesitate “to revile and even to trample and spit upon the Bible.” By the 1830s, Kneeland was a well-known lecturer and the publisher of a Boston newspaper called the Investigator, which promoted free thought, unionization, economic reform, and even contraception and sex education.3

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In December 1833, Kneeland was indicted for violating the state’s 1782 blasphemy statute that forbade the willful blaspheming of the name of God. Among the alleged violations were Kneeland’s publication of an article denying the immaculate conception of the Virgin Mary and an article written by Kneeland criticizing Universalism; the latter began with the declaration “Universalists believe in a god which I do not.” The state tried Kneeland four times for his transgressions—first in municipal court, where he was found guilty, and then three times before the supreme judicial court de novo, which resulted in two mistrials before the final guilty verdict—over the course of two years. The trials were a cause célèbre in Boston, with people following the proceedings in the newspapers while supporters and detractors battled for public opinion in pamphlets and rallies.4 The commonwealth was ably represented at the first two trials by Samuel Parker, son of an Episcopal bishop, who revealed his disdain for Kneeland throughout the proceedings and later published his trial arguments for posterity “at the request of some Christians.”5 Parker’s case relied entirely on the maxim, and he argued that blasphemy was punishable because Christianity was “part and parcel of the constitution” of the commonwealth, even though the state had just abolished its religious establishment. In Parker’s view, that Christian character was evinced in two ways. First, the constitution expressly acknowledged God and the duty of all people to worship the Supreme Being while it imposed religious tests on officeholders and on witnesses in court. “How could a religion be more incorporated and become part of a constitution?” Parker asked rhetorically. More significantly, Parker asserted that the constitution and those who framed it drew all authority from the God of Christianity. “[T]he foundation of all security and safety in Government [rests] upon the solid rock of a belief in the existence and attributes of God.” This belief in Christianity constituted “the only binding obligation among men, and its denial tends to the subversion of all law and order in society.” Thus, in Parker’s view, political disestablishment in Massachusetts had done little to change the relationship between state government and religion. While the financial ties might have been severed, the interdependence remained intact.6 Parker’s reliance on the maxim was also revealed through his description of the offense of blasphemy. Under his schema, the elements of blasphemy were satisfied merely by showing that the statements conflicted with the Christian principles upon which government depended; evidence that the utterances actually offended public sentiments or incited people to riot were unnecessary. Even though this standard made Parker’s job much easier, he did not limit himself to Kneeland’s alleged blasphemous statements but launched into a general attack on Kneeland’s religious and political beliefs, seeking to prejudice

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the jury through claims that Kneeland advocated “illicit sexual intercourses . . . encouraged by physiological checks upon conception,” the destruction of marriage, and even the abolition of private property ownership.7 If Kneeland expected a fairer treatment from the judiciary, he was sadly mistaken. Following up on Parker’s arguments, municipal judge Peter Thacher instructed jurors that blasphemy was a crime because the constitution “recognized the being of a God [and] his providence in the government of states.” Thacher’s own view of Kneeland’s writings was never in doubt; abandoning all semblance of impartiality, he quizzed Kneeland on whether he believed in God, then lamented before the jury that “God is not swift to punish impious men in this life. . . . Human laws, without the aid of religion, will do but little either to perfect the moral character of individuals or to preserve the public peace.” Thacher directed the jury to return a verdict of guilty, which it did within ten minutes.8 Kneeland appealed his conviction to the Massachusetts Supreme Judicial Court, where a trial de novo was held before one justice sitting with a new jury. The subsequent trials proceeded much like the first, with the prosecution disparaging Kneeland’s religious and political views and the judge affirming the commonwealth’s “right to make laws for the preservation of the religion of the state, [and] of civil society.” Finally, after two mistrials, Kneeland was convicted a second time and sentenced to three months’ imprisonment.9 Kneeland, in his sixties and financially bankrupt, appealed his final conviction pro se to the full supreme judicial court, which took two years to issue a decision upholding his conviction. The majority opinion was written by Chief Justice Lemuel Shaw, a conservative Unitarian and friend of Justice Story and Chancellor Kent. Shaw was one of the giants of the nineteenthcentury bench but allowed his skills to be compromised by the emotionalism of the case. Shaw had little trouble finding that Kneeland’s writings constituted blasphemy, relying on the common-law definition of blasphemy as enunciated by Blackstone: one violated the statute “by denying God, his creation, government or final judging of the world, or, by cursing or contumeliously reproaching God.” Shaw’s discussion omitted any requirement that the utterance offend a person or incite public riot. As in Ruggles, Updegraph, and Chandler, the mere act of reproaching God’s name was presumed to injure public order. By so holding, Shaw implicitly relied on the maxim. As to how Kneeland’s statements constituted blasphemy, Shaw would not say. The jury had found the writings to be blasphemous, and the court would not substitute its judgment for their findings.10 Chief Justice Shaw’s opinion did not address the prosecution’s Christiannation arguments, and he remarked only that blasphemy was indictable

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because it tended “to destroy the veneration due to [God].”11 However, Justice Marcus Morton, the only Jacksonian on the court, wrote an impassioned dissent that would serve as a bellwether for the future of blasphemy prosecutions. Morton criticized Shaw’s defense of blasphemy and his implicit reliance on the maxim. Acknowledging that the original state constitution had “recognize[d] not only the Christian religion, but one form of it, protestant Christianity, as the established religion, which was to be maintained as well as protected by the power of the government,” Morton insisted that disestablishment had ended that relationship. Morton additionally argued that the Declaration of Rights “clearly protects every citizen, not only in adopting, but in professing, whatever tenets he may think right,” including the “right of advocating and disseminating” those beliefs. In Morton’s view, this right extended not only to Jews and Muslims but also to atheists and freethinkers such as Kneeland. Morton stopped short of expressly disputing a Christian basis for the law, but his feelings on the subject were clear. It would be both “impolitic” and “unjust” for the state to enforce Christian tenets, he wrote. “Any attempt, by legislation, to control or dictate the belief of individuals, is so impracticable, so perfectly futile, as to show at once, how entirely above all civil authority are the operations of the human mind, especially in the adoption of its religious faith.” For Morton, therefore, the recent disestablishment had accomplished more than merely abolishing tax support for religion. The act of disestablishment, joined with the constitution’s affirmations of religious equality and rights of conscience, overrode any claim that the law or government had a religious basis or obligation. Both Kneeland’s conviction for blasphemy and the maxim were inconsistent with disestablishment.12 Morton did not call expressly for the abolition of blasphemy prosecutions, but his analysis suggested little else. Under his formulation, blasphemy could no longer be justified on grounds that the utterances disparaged the Christian tenets and principles upon which government rested. Instead, to be actionable, the blasphemous statements had to be wantonly made—designed to “maliciously . . . cause pain or injury to others”—and tied to proof of an actual disturbance or annoyance. Without a showing of both intent and actual injury, the law could not survive the constitutional proscriptions. By requiring proof of an actual injury, Morton divorced the offense from the maxim, rendering blasphemy equivalent to disorderly conduct or disturbing the peace.13 Morton’s dissent was small consolation for Kneeland, who ended up serving sixty days in jail for his transgressions. Quite possibly, the injustice of Kneeland’s four trials and Morton’s eloquent dissent had an inhibiting effect on future prosecutions. Absent one notable exception in the 1880s, Kneeland’s case was the last significant prosecution for blasphemy in the century. Still, in

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its heyday, blasphemy represented one of the clearest illustrations of how the law reinforced Christian principles.14

Oath Requirements As much as blasphemy may be considered the archetypal religious offense, a more common application of the maxim during the antebellum period involved religious oaths for witnesses, jurors, and declarants. As the century opened, few common-law practices were more firmly established than the rule that court testimony and legal obligations be made pursuant to an oath based on a belief in God and in future accountability after death. This rule had evolved out of a need to ensure the truthfulness and reliability of oral testimony and was thought to impose a compulsion toward veracity out of fear of eternal damnation. As the Connecticut Supreme Court of Errors wrote in 1809, there could be no doubt “that the law intended, that the fear of offending God should have its influence upon a witness to induce him to speak the truth.” Because “no such influence can be expected from the man who disregards an oath,” an unbeliever in God, “therefore, [is] excluded from being a witness.”15 Under the traditional formulation, for a witness, juror, or declarant to be competent to testify or undertake a legal obligation, he had to assert a belief not only in God but also in the accountability of his soul after death for swearing falsely. The rule was far-reaching, extending beyond the competency of judicial witnesses to include all forms of oath taking, including will execution and office holding. In contrast to the federal Constitution’s ban on religious tests, all of the original thirteen state constitutions had imposed or retained various religious requirements for public office holding and civic participation that included oath taking. The oath requirement was viewed, according to one advocate, as a “means of divine appointment for securing faithfulness in official station.” Because of these requirements, religious nonconformists could not aspire to public office, enter into many legal agreements, bequeath property, or file suit and testify to enforce their legal rights. And as mentioned, nonconformists were barred from testifying as witnesses or serving as jurors. Many of the important attributes of citizenship were thus closed to non-Christians. The oath requirement, more than any other rule or procedure, indicated the close relationship between the law and the Christian religion and represented a chief holdover from the era of religious establishments.16 In theory, the oath requirement of a belief in God and in future accountability permitted Catholics and even Jews and Muslims to be sworn and testify in

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court. In reality, the rule imposed a distinctly Calvinist view of a future state of punishments and rewards that often excluded all non-Protestants. Catholics were occasionally challenged based on the church’s practice of absolution, which purportedly negated all fear of punishment for sin. In the 1834 trial of Protestant arsonists charged with burning the Ursuline Catholic convent in Boston, the defendants’ counsel claimed that the nuns were incompetent to testify because “confession and absolution being parts of the Roman Catholic faith, a witness belonging to that sect might testify what was not true.” The court rejected the defendants’ argument, noting that it would open the door to measuring the belief in the “duration and extent of future punishment” of all witnesses. Nonetheless, the rule served as a handy tool for intimidating unfavorable witnesses and declarants who happened to be religious nonconformists.17 Early antebellum judges understood the close connection between the oath requirement and a Christian basis for the law and often interpreted the rule in a way that reinforced notions of the nation’s religious foundations. In the 1820 case of Jackson v. Gridley, the New York Supreme Court held that a Universalist could not be sworn as a witness because he lacked an orthodox belief in God and in a future state of punishments and rewards. Stating the traditional rule, the court held that no testimony was considered competent or admissible “unless delivered under the solemnity of an oath, which comes home to the conscience of the witness, and will create a tie arising from his belief that false swearing would expose him to punishment in the life to come.” In the court’s mind, the rule did more than merely ensure the trustworthiness of oral testimony. The oath, with its appeal to God, served to sanctify the legal process. “On this great principle rest all our institutions, and especially the distribution of justice between man and man.” The oath, therefore, continually reaffirmed the religious foundations of the law and of God’s ultimate authority over matters of truth.18 Universalists and some Quakers, with their belief in universal salvation, were particularly subject to the rule. In the 1809 Connecticut case of Curtiss v. Strong, the state’s supreme court of errors read the rule to exclude a Universalist from testifying, holding that whoever “does not believe in the obligation of an oath, and a future state of rewards and punishments, of any accountability after death for his conduct, is by law excluded from being a witness.” The court acknowledged that, in theory, every person who believed in the obligation of an oath, “whatever may be his religious creed, whether Christian, Mahommedan, or Pagan, or whether he disbelieves them all, is an admissible witness.” But the court held that the law still intended “that the fear of offending God should have its influence upon a witness to induce him to speak the truth.” Here, the witness could not affirm a belief “in a future state of rewards and punishments,

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or any accountability for his conduct after death,” so he was appropriately excluded from testifying.19 Nineteen years later, the same court expounded upon its understanding of the rule in a usury case where a Universalist was again excluded from testifying. The opinion in Atwood v. Welton was written by Justice David Daggett who, as an attorney in Curtiss, had argued for a strict application of the rule based on Connecticut’s status as a “christian land.” Some two decades later, his perspective had not changed, notwithstanding Connecticut’s disestablishment in the interim. Daggett defined the oath as “an appeal to God, by the witness, for the truth of what he declares, and an imprecation of divine vengeance upon him, if his testimony shall be false.” If a witness were not required to believe in a “future state of rewards and punishments,” Daggett asserted, then there would be no “tie upon his conscience, and of course, that sanction which the law requires,” and the judicial system would crumble.20 Daggett also rejected the appellant’s claim that the exclusion of a Universalist witness violated the guarantees of religious freedom and nonpreference contained in the state’s new Declaration of Rights. Those provisions had not affected the common-law rule for witnesses, Daggett insisted. “How does his exclusion affect his belief, profession or mode of worship?” Rather, the witness had merely been denied the privilege of testifying in a court of law. But Daggett also argued that the oath requirement did not violate the constitution because “Christianity is a part of the common law of the land. . . . Our ancestors brought it with them to this state, and there is no statute abrogating it.” Although he acknowledged that the constitution no longer prescribed any rules of faith nor funded worship, it still recognized “the great doctrines of Christianity” and preserved “them from open assaults of their enemies.” Pointing to statutes punishing blasphemy, profane swearing, and Sabbath violations, Daggett declared, “These provisions do not look like [the] annulling [of ] Christianity.”21 One justice dissented from Daggett’s opinion on the ground that the witness rule should be more liberally construed. While not refuting Daggett’s Christiannation rhetoric, Justice John T. Peters speculated whether a strict rule was repugnant to the constitution: “If the legislature cannot disfranchize a citizen, on account of his religious sentiments, a fortiori a court of justice cannot” do the same.22 These early cases reaffirmed the close connection between the oath requirement and the maxim and the interrelationship of both with republican government. The religious oath not only guaranteed the trustworthiness of oral testimony and the efficiency of court proceedings; with its appeal to God, the oath legitimized the court system, sanctified the legal process, and reaffirmed the underlying religious basis for the law. As Presbyterian minister D. X. Junkin

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wrote in an 1845 defense of the traditional rule, The Oath: A Divine Ordinance, the oath was “an ordinance from God,” without which “truth, justice, order, peace, [and] prosperity” would all perish. Because America was a “Protestant nation,” Junkin insisted, it was only “just that the laws of a country should be adapted to the [ faith of the] majority.” For Junkin, the oath was a symbol of the proper relationship between Christianity and government. “The social constitution is a divine ordinance,” Junkin declared. “[T]he principles of sound Christian morals are the only true principles of freedom. A government attempted under a republican form, in the absence of sound moral principles and of moral sanctions could not secure the ends of government.”23 But Junkin was not interested solely in preserving the sanctity of the oath and the legitimacy of the legal system. He was also responding to the ongoing criticism of the evangelical phalanx’s efforts to Christianize America through reform societies, moral suasion, and legal enforcement: The strong and just repugnance, which our people cherish, against any union of church and state, has in some instances degenerated into a morbid jealousy, and has denied to the church the exercise of functions that rightly belong to her. The popular sentiment discourages any mingling of religion and politics, and hence had arisen a prejudice against the discussion, in the pulpit, even of religious topics, if they relate to civil duties and the welfare of human government.24 Contesting the Jeffersonian view of separation, Junkin argued that critics had forgotten “that the church and state, like sister planets, revolve, each in her appropriate sphere, around the same glorious sun of divine truth, that their light and authority are derived from a common source.” This shared source of authority meant that religion and government could never be fully separated nor relinquish their obligations to support and promote each other. That Junkin felt compelled to write his defense meant that his vision of church and state was still under attack, a fact he readily acknowledged. For Junkin and other supporters of the traditional rule, the oath requirement stood as a barrier to further disestablishment.25 Judges generally upheld the religious prerequisite for oath taking throughout the antebellum period, with a slight modification coming later through a lessening of the requirement that declarants assert a belief in future accountability. Beginning in the 1820s, courts began to revise the rule to allow declarants to be sworn if they could assert belief in God and in punishment in this world or the next for lying.26 For the time being, however, this minor adjustment did little to change the religious presumptions underlying the law. Most

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jurists during the first half of the nineteenth century would have agreed with Justice Story that “[t]he administration of an oath supposes, that a moral and religious accountability is felt to a Supreme Being, and is the sanction which the law requires upon the conscience of a person, before it admits him to testify.” Even absent such explicit connections, the religious oath requirement reinforced the law’s fundamental reliance upon Christianity and indicated to all observers the interrelationship of the two institutions.27

Sunday Laws A final area of the law where the maxim was applied in a significant manner was Sabbath enforcement. Sunday or Sabbath laws, sometimes called “blue laws” from the original color of the paper on which they were printed, stand as some of the oldest, most widespread, and most enduring examples of the legal recognition and enforcement of a religious tenet. Probably more than any other form of religious legislation, Sabbath laws have reflected the close relationship between American culture and its Christian heritage. Sabbath laws were among the first regulations enforced in the British American colonies and were unmistakable in their religious purpose. New Haven’s 1656 blue law prohibited the profaning of the “Lord’s Day” “by sinful servile work, or by unlawful sport, recreation, or otherwise, whether wilfully or in a careless neglect.” Violators could be punished by fine, by imprisonment, or corporally “according to the nature, and measure of the sinn, and the offense,” and could suffer death for serious breaches. The Puritan colonies of Connecticut, Plymouth, Massachusetts Bay, and New Hampshire all enacted similar measures. Lest there was any misunderstanding as to the religious purpose of such laws, early statutes like Plymouth’s 1671 act provided that Sabbath breaches were “Presumptuously and with high hand committed, against the known Command and Authority of the blessed God.”28 Colonies outside of Puritan New England also enacted laws prohibiting labor, travel, and amusements on Sundays. The most influential Sunday law in the American colonies came not from the Puritans but from the pseudo-Catholic king Charles II. The Act for the Better Observation and Keeping Holy the Lord’s Day, Commonly Called Sunday, enacted by Parliament in 1676, required that every person “shall upon every Lord’s day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion.” The law prohibited “any worldly labor or business” on Sundays and the conducting of court proceedings. Punishment for violators was five shillings. Charles II’s act became the model for Sabbath laws for a majority of

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the British colonies, in particular, Maryland, Delaware, New Jersey, Rhode Island, and the Carolinas.29 The North Carolina act of 1741 was representative of the late colonial laws: [A]ll and every Person and Persons whatsoever shall, on the Lord’s Day, commonly called Sunday, carefully apply themselves to the Duties of Religion and Piety; and that no Tradesman, Artificer, Planter, Labourer, or other Person whatsoever, shall, upon the Land or Water, do or exercise any Labor, Business, or Work . . . on the Lord’s Day. Violators incurred a fine of ten shillings.30 Variations in the language of colonial Sunday legislation could not hide a uniformity of religious design. On one level, the laws protected the peace and sanctity of the day for those who wished to worship undisturbed. But approximately half of the colonies also required (at least on paper) Sunday church attendance up until the Revolution, with Massachusetts reenacting an attendance law as late as 1797. The Massachusetts law required regular church attendance—the possible punishment was ten shillings—while Connecticut’s revised Sunday law of 1821 stated: “It shall be the duty of the citizens of this State to attend the public worship of God on the Lord’s day.”31 Writing in 1812, Yale College’s Timothy Dwight praised the two states’ Sabbath laws, noting that the “Sabbath is observed in New England with a greater degree of sobriety and strictness than in any other part of the world.” Dwight maintained that the laws were “founded on the law of God, and [were] necessary to the preservation, as well as the peaceful enjoyment” of Christianity.32 Even among those colonies without a history of mandatory church attendance, the religious purpose of the Sunday laws was manifest. The Pennsylvania act announced its purpose as to enable citizens to “better dispose themselves to read and hear the Holy Scriptures at home, and frequent such meetings of religious worship abroad, as may best suit their respective persuasions.” The Maryland law of 1715 spoke of the importance of “keeping holy the Lord’s Day,” while the New York act of 1695 began with this phrase: “Whereas the true and sincere service and worship of God, according to his holy will is often profaned and neglected . . .” Only Rhode Island’s law was silent as to a religious purpose, referring simply to “the first day of the week.” Following the Revolution, all of the new states either enacted new Sabbath laws or carried over portions of colonial laws into their statute books. Maryland and North Carolina, for example, used their old colonial laws unamended well into the nineteenth century. As late as 1908, prosecutors sought to enforce Maryland’s 1723 act punishing Sabbath breakers, which was still in effect in the District of Columbia.33

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With a religious purpose so prominent in early Sabbath laws, judicial affirmations of the maxim followed. One of the earliest reported cases to mention a religious basis for Sunday laws was the 1811 Ruggles case. As a way of bolstering Ruggles’s blasphemy conviction, Chief Justice Kent referred to how the New York Sabbath law “consecrates the first day of the week, as holy time, and considered the violation of it as immoral.” If the state could protect the Christian Sabbath, Kent surmised, then it could surely prosecute common blasphemers.34 The religious nature of Sunday laws received its first thorough consideration five years after Ruggles in the Massachusetts case of Pearce v. Atwood. In an interesting twist to early Sabbath law enforcement, Pearce had successfully sued Atwood, a local constable, for arresting him with a faulty warrant issued on a Sunday. Pearce readily acknowledged that he had traveled on Sunday but maintained that the local tithingman had exceeded his authority—and had himself violated the Sabbath—by obtaining an arrest warrant on Sunday in lieu of merely issuing a citation. Pearce argued that his arrest would have been legal only if his Sabbath violation had been accompanied by violence or had disturbed the peace, neither of which had occurred.35 With a degree of apparent chagrin, the supreme judicial court affirmed Pearce’s claim of false imprisonment, but not without first defending the religious purpose of the Sabbath law. Sunday was a “holy day,” the court declared, and the statute was enacted for “the sole object” of ensuring “reverence and respect for one day of the week, in order that religious exercises should be performed without interruption.” While chastising Pearce for traveling on Sunday, the court declared that, “however sacred the day, its observance cannot be enforced, except in the manner provided by law.” In this case, the tithingman’s authority was limited to merely stopping and examining Pearce and, if he were found wanting, to issuing a citation.36 Pearce is significant for more than its affirmation of a religious purpose for Sunday laws. Although the court held for Pearce, it rejected his claim that he could be arrested for a Sabbath breach only if he had caused an actual disturbance. Following a rule set out by Blackstone, the court declared that all acts deemed to be inconsistent with the Sabbath could be considered “constructively a breach of the peace” and otherwise subject to a citation or arrest. Pearce’s conduct had conflicted with “the divine appointment of that day as holy time,” wrote the court; as such, he had offended the peace and dignity of the Sabbath regardless of whether his conduct had disturbed or annoyed others. This concept of a “constructive breach” would ensure that the justification for Sunday laws remained essentially religious.37 The Pennsylvania Supreme Court affirmed the religious function of Sabbath laws the following year (1817) in a case where a Jewish merchant had

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been fined for working on a Sunday. In Commonwealth v. Wolf, the court confirmed that the purpose of the Sunday law was that people “should be reminded of their religious duties at stated periods.” The authority for the law flowed from scripture, the court asserted, which commanded that “we should abstain from our usual labour the one-seventh part of our time, and devote the same to the worship of the Deity, and the exercise of our religious duties.” Like the court in Pearce, the Pennsylvania court required no evidence that Wolf had disturbed the peace through opening his shop; his conduct was an affront to religion and sufficient to constitute a violation. “The act considers a breach of the sabbath as a crime injurious to society,” the court stated, such that additional proof of disturbance was unnecessary.38 The Pennsylvania court also rejected Wolf’s claim that the law infringed upon his right to freely practice his religion, disputing that the Talmud required Wolf to work every day of the week except Saturday. Embarking on a troubling foray into theological interpretation, the court wrote that it had “never heard of the fourth commandment having received this construction.” Instead, the “true meaning of the commandment” was that all people should abstain from labor “one-seventh part of our time, and devote the same to worship of the Deity”— even the “Jewish Talmud, containing the religious traditions of that people,” asserted “no such doctrine” as Wolf claimed. As the final arbiters of both the law and scripture in Pennsylvania, the supreme court determined that Wolf’s religious rights were defined by how well they complemented the practices of the religious majority. By describing Wolf’s constructive breach as a “crime injurious to society,” the court also left little doubt that the chief purpose of the Sabbath law was the protection if not the promotion of Christianity.39 Although Pearce and Wolf contain more detailed language than most court opinions, they are representative of Sabbath law decisions during the antebellum period. First and foremost, Sabbath laws ensured the dominant position of Christianity within the culture. Not only was Christianity to be protected as the “true” religion and the faith of the majority of Americans, it also served as a primary institution undergirding republican society. “It is an institution deeply seated in the religious affections of the community, and one of the foundations of public morals, and of our political fabric,” wrote a Pennsylvania court in 1853. By mandating fealty to Christianity, Sabbath laws helped to ensure the civic virtue that made democracy possible.40 Additionally, Sabbath laws served the more immediate goals of promoting morality and ensuring public order by limiting worldly temptations for idle workers on their day off. Vices such as drunkenness and gambling, while generally disapproved, were considered more serious when they occurred on a Sunday. Gambling, the Maryland Court of Appeals stated in 1852, “is a gross

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offense against the decency and public morals” that generally deserved punishment. Because the defendant had been caught gaming on a Sunday, however, his activity was even more culpable. The purpose of the Sabbath law, the Maryland court asserted, was “to make that unlawful on a Sunday which would be deemed innocent on any other day of the week.” As the Arkansas Supreme Court concurred during the same period: “The object of the statute was to prohibit the desecration of the Sabbath by engaging in the vicious employment of playing cards on that day, which is set apart by Divine appointment. . . . No matter what the purpose of the game may be, it is a desecration of the day, and vicious to public morals in its tendencies.” Thus, minor behavioral offenses became more serious when committed on the Sabbath, a fact that only highlighted the religious nature and purpose of the laws.41 In all of these early cases, the religious basis for Sabbath laws was readily admitted. Most frequently, courts acknowledged the religious purpose for the law through a passing reference to the sacred character of the day. In a few instances, courts eagerly embraced the maxim. The Maryland Court of Appeals remarked in 1834 that “[t]he Sabbath is emphatically the day of rest, and the day of rest here is the ‘Lord’s day’ or christian’s Sunday.” Maryland was “a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour.”42 The Alabama Supreme Court, writing in 1843, also candidly acknowledged the religious purpose of the state’s Sunday law: “We do not think the design of the legislature in the passage of the act can be doubted. It was evidently to promote and advance the interest of religion, by prohibiting all persons from engaging in their common and ordinary avocations of business, or employment, on Sunday.”43 Occasionally, a court went beyond simply acknowledging the religious purpose of Sabbath laws to embracing them as evidence of America’s Christian foundation, as had been done in Benjamin. “Sunday or the Sabbath is properly and emphatically called the Lord’s day,” declared the Arkansas Supreme Court in 1850, “and is one amongst the first and most sacred institutions of the christian religion. This system of religion is recognized as constituting part and parcel of the common law, and as such all of the institutions growing out of it.” Not only were Sabbath laws proof of the law’s relationship to Christianity, the laws and the institution they protected served as the linchpin that held together republican society. As a New York trial court remarked in 1861, the “stability of government, [and] the welfare of the subject and interests of society” required “that the day of rest observed by the people of the nation should be uniform, and that its observance should be to some extent compulsory.” For some judges, the importance of the Sabbath could not be overstated.44

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The religious function of early Sunday laws was further evidenced through judicial adherence to two legal theorems: constructive breach of the Sabbath and dies non juridicus (a nonjudicial day). As had occurred in Pearce and Wolf, early courts generally did not require proof that a Sabbath offender had disturbed public worship or had otherwise created a public disturbance or nuisance. A breach of the Sabbath was considered a threat to the order and welfare of society generally and, as defined by the Pearce court, amounted to a “constructive” breach of the peace. This theory of constructive breach presupposed the notion of Christianity’s incorporation into the common law. Any violation of the Sabbath represented an affront to Christianity, the institution upon which the law relied. Hence, proof that the breach actually offended other people or interfered with their ability to engage in religious worship was unnecessary.45 Judges commonly adhered to the constructive breach theory in cases involving passive breaches of the Sabbath throughout the first half of the century. The South Carolina prosecutions of Jewish merchants Solomon Benjamin (1846) and Alexander Marks (1833) had involved the peaceful opening of shops on Sunday. Nevertheless, the threat to the Sabbath was as great as if the defendants had created a public disturbance or had barred the door to a local church. Similarly, the opening of a dram shop on Sunday was “highly vicious and demoralizing in its tendency,” the Arkansas Supreme Court remarked in an 1850 case. An open shop would entice citizens to forgo their religious duties and “amounts to a general invitation to the community to enter and indulge in the intoxicating cup, thereby shocking their sense of propriety and common decency, and bringing into utter contempt the sacred and venerable institution of the Sabbath.” With such important principles at stake, there was no need to show that the shop owner’s conduct had actually disturbed the peace or interfered with another’s religious worship.46 The theory of constructive breaches of the Sabbath had such a resilient quality that a handful of jurisdictions retained the rule until the end of the century. As late as 1886, the Tennessee Supreme Court held that even Sabbath breaches that failed to create a public disturbance tended “to corrupt public morals” and “sap the foundations of Christianity.” Pursuant to this legal theorem, it was not necessary “to a conviction that the proof show that any person was disturbed thereby.” Only through a close reliance on the maxim, however, did constructive breaches retain any vitality.47 The second legal theory that reinforced the religious character of Sunday laws was the principle of dies non juridicus. Under this doctrine, all legal actions undertaken on Sunday were null and void; summonses, warrants, and other legal writs could not be issued or served on that day. This rule, followed in all

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the states, varied widely in application with some jurisdictions extending the Sunday prohibition to nonjudicial actions, such as the execution of contracts, deeds, or wills.48 In the 1827 case of Story v. Elliot, the New York Supreme Court voided an arbitration award that had been “made and published on a Sunday.” The court held that, even though legal acts on Sunday were not prohibited by a statute, the common law had incorporated church canon law declaring the day to be dies non juridicus, such that all legal activities were considered void.49 Even though dies non juridicus could merely have been considered a technical legal rule based on custom, convenience, or common-law tradition, some courts assigned to it much greater significance. Holding that a Sunday could not be counted in determining the time for filing a notice of appeal, the Georgia Supreme Court wrote in 1852 that it could not “disregard the moral law of Great Jehovah, who, from the smoking top of Mount Sinai proclaimed to all the world, ‘Remember the Sabbath-day to keep it holy.’” The rule reinforced the fact that “ours is a christian country, as contra-distinguished from Jew, Pagan, or Mohammedon,” the court declared. Legal and commercial transactions conflicted with this sacred nature of the day and were thereby prohibited. The maxim, though not necessary for the application of the rule, served as a handy rationale for its support.50 In practice, dies non juridicus often meant that a party to a contract executed on Sunday could not enforce the agreement, sue for a breach, or even prevail on a claim that he had been fraudulently induced. In 1847, the Maine Supreme Judicial Court heard an appeal in a suit to enforce a promissory note executed on a Sunday involving the sale of a horse. In affirming the dismissal of the action, the court held that “the law will not assist a party to enforce a contract made in violation of its provisions.” As the Ohio Supreme Court concurred in 1849, “an ordinary contract made in the course of business, on a Sunday, is void, and . . . no action can be sustained, to recover damages for the breach of such contract.”51 Courts sometimes extended the rule to bar suits for negligence that occurred on Sundays. In McGrath v. Merwin, the plaintiff was injured on a Sunday when, while he was in the process of digging out a wheel pit at the defendant’s paper mill, the machinery was carelessly set in motion. A Massachusetts trial court threw out the plaintiff’s negligence suit on the ground that the injury occurred while he was working on a Sunday, a decision later affirmed by the supreme judicial court. “The plaintiff was participating in an illegal work which led to the injury he sustained,” the court held, “and the law will not aid him to recover damages for the consequences of his own illegal act.”52 As occurred in McGrath, the frequent result of dies non juridicus was that the injured party, or the one tricked into purchasing defective merchandise,

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was barred from recovering, thus rewarding the negligent or deceitful participant. Even when the deceit or wrong was acknowledged, and hence the sinner identified, antebellum courts clung to the formalism of the rule and its religious purpose; the wronged party’s breach of the Sabbath outweighed other considerations. In the Maine promissory note case previously mentioned, the court held for the defendant even though he had admitted to obtaining the plaintiff’s horse without paying for it. The concept of dies non juridicus rendered otherwise legal acts void ab initio, thus relieving courts from further considering the equities. As the Mississippi Supreme Court declared in 1866, contracts performed on Sunday “are not only positively prohibited by the law of the land, but they are generally admitted, in Christian communities, to be in violation of the law of God.” As a result, “[c]ontracts made on Sunday are void because they are made on that day, which is prohibited. It is the timing of the act done, that vitiates it.”53 Both of these legal theories helped to reinforce a religious perspective toward Sunday laws well into midcentury. High courts in Arkansas (1850), Pennsylvania (1853), Missouri (1854), New York (1861), Minnesota (1862), and Mississippi (1866) reaffirmed the religious basis for Sabbath laws.54 Most judges simply cited the seminal decisions of Wolf, Pearce, or Benjamin; others chose to elaborate on the religious purpose for the laws. The Pennsylvania Supreme Court wrote in 1853 that Sabbath rest “was enjoined by the precept and example of the Author of our existence, and government, founding itself upon Divine appointment, has made it a civil institution.” Six years later, a Pennsylvania Commonwealth Court declared that Sunday was “clothed with peculiar sanctity” and noted that “the ancient, colonial, provincial, and State Legislature, and the Constitution itself, are all based upon Christianity as a part of the common law, and distinctly recognize Sunday.” Thus, the court concluded, “[u]pon its peaceful observance Christianity in a great measure depends for its support. Destroy this day and a revolution of the most astounding character is produced.”55 Among those courts that embraced the religious purpose of Sabbath laws, few were as candid as the Missouri Supreme Court. In 1854, the court considered an appeal by a defendant convicted of operating an alehouse on Sunday. The defendant contended that the laws prohibiting the sale of intoxicating liquors “were dictated by religious motives” and thus inconsistent with the rights of religious conscience. Accepting the defendant’s characterization of the law’s origins as accurate, the court nevertheless upheld his conviction, declaring that the Sunday law, like the state constitution, revealed “that the Christian religion was the religion of its framers who had long lived under, and experienced the necessity of laws to secure the observance of Sunday as a day of rest.” Sunday

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laws necessarily enforced religious conformity, and rightly so: “experience had shown that the mild voice of Christianity was unable to secure the due observance of Sunday as a day of rest.” It was therefore appropriate that the “arm of the civil power was interposed” to ensure religious compliance. For the Missouri court, the religious purpose for the law was not in doubt. As the court asked rhetorically in closing, “[c]onvert Sunday into a worldly day by law, and what becomes of Christianity?”56 As these decisions indicate, by the fifth decade of the nineteenth century, the maxim that Christianity was part of the law was well established. The maxim had been embraced and applied by the high courts in New York, South Carolina, Pennsylvania, and Massachusetts, among others, and by several of the leading jurists of the day. Although language expressly affirming the maxim appeared in only a small number of the church-state cases during the antebellum period, those cases were more than sufficient to give the maxim an aura of authority. And in several instances, the legal weight given to the maxim determined the outcome of a case. All of the blasphemy prosecutions and most Sabbath cases involving constructive breaches could not have occurred without judicial adherence to the maxim. Whether stated or implied, it provided a compelling rationale for the regulation of behavior according to a Christian standard. The maxim also imposed a significant limitation on understandings of church-state separation and the ultimate effects of disestablishment. By reinforcing the law’s relationship to Christianity, the maxim served as a major impediment to further disestablishment in America.

Justice Story and the Maxim This consideration of the origins and impact of the maxim would be incomplete without giving special attention to the contribution of Joseph Story. Story was the most influential spokesman for Christianity’s incorporation into the law, Chancellor Kent notwithstanding. For more than three decades, Story advanced the maxim in his speeches, writings, and court opinions. In three documents in particular—his American Jurist article, his Commentaries on the Constitution, and his Girard will opinion—Story elaborated on the concept at length, and it was through these writings that he had the greatest impact on popular perceptions of the law’s dependence upon Christianity. Story’s own religious beliefs and general attitude toward church-state issues help to explain his understanding of the maxim and his overall conception of the relationship of religion to republican government. Story was not theologically orthodox, having converted to Unitarianism as a student while

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attending Harvard College. However, Story’s Unitarianism was not the theologically abstract or socially indulgent system that characterized the denomination later in the century. The Unitarianism with which Story aligned himself was part of the conservative, intellectual establishment that dominated New England and defended its remaining establishments to the bitter end. Emphasizing personal morality and rationalism over emotion or experimentalism, Unitarians like Story advocated public virtue and social order as the keystones of republican society. Having achieved dominance in Massachusetts, the Unitarian establishment fought to continue the financial support of religion and the regulation of public morality through law. As already discussed, Story served as a delegate to the 1820 Massachusetts Constitutional Convention and sought to preserve the state’s establishment through moderate reforms.57 One biographer has written that Story held a warm, personal theology that stood in stark contrast to his conservative political outlook. On the contrary, there is nothing in Story’s occasional references to religion that reveals any tension between his faith and his public life. In many respects, his beliefs were quite traditional for the time. Story believed in an active and personal God and in a future state of punishments and rewards. His theology was highly ethical, intellectual, and, to a large degree, quite practical. While Story disliked the emotional and anti-intellectual features he perceived in antebellum evangelicalism, he shared much of the latter’s moral and doctrinal rigidity.58 In a letter to a friend, Story remarked that he believed in “the divine mission of Christ, the credibility and authenticity of the Bible, the miracles wrought by our Saviour and his apostles, and the efficacy of his precepts to lead men to salvation.” He noted that he accepted the “divine authority” of the scriptures as well as the divine mission of Jesus Christ, disputing only claims of Jesus’ individual divinity. As such, Story’s rejection of the Trinity had little impact on his adherence to traditional Calvinist doctrine. Story’s religious beliefs complemented his concern for an orderly, moral society and its reliance on a civic religious presence.59 Story’s belief in the importance of religious virtue and the public support of religion was apparent in one of his earliest decisions involving a church-state issue, Terrett v. Taylor (1815). In 1801, the Virginia legislature had passed a statute authorizing the seizure and sale of certain vestry lands that had belonged to the Church of England before the Revolution and were now claimed by its successor, the Protestant Episcopal Church. The state argued that, because the lands had been held under a religious establishment, an older statute guaranteeing the Episcopal Church ownership of the land violated laws governing the separation of church and state. The Supreme Court disagreed, holding in a unanimous opinion written by Story that the statute infringed on the church’s

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vested property rights under the common law, as the church had not forfeited its land nor committed any offense requiring seizure.60 What is most revealing about Story’s attitude toward the maxim is his response to claims that the grant of the vestry lands to the Episcopal Church violated disestablishment in Virginia. Recharacterizing the underlying issue, Story wrote that there was no prohibition against states passing laws that granted churches corporate rights for the management of their property. “[I]t is difficult to perceive how it follows as a consequence that the legislature may not enact laws more effectually to enable all sects to accomplish the great objects of religion by giving them corporate rights.” But Story went on to suggest that Virginia could pass laws aiding religion so long as it did not create an exclusive establishment of religion. The state’s relationship with religion “cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, [and] for the endowment of churches,” Story wrote. Under Story’s view, states could assist churches with their religious ministries provided they gave no preferential treatment of one religion over others. While the opinion left it up to states to proffer such assistance, it was implicit that Story favored such arrangements.61 Given that the Court in Terrett was purportedly construing the Virginia Constitution, Story’s interpretation of that document’s prohibitions was historically inaccurate and reflected his own bias toward religious establishments. In disestablishing religion in 1786, the Virginia legislature had expressly rejected both multiple and exclusive establishments of religion as well as a system of nonpreferential aid to all religions. By 1815, all other states, with the exception of the three in New England, considered such arrangements to be inconsistent with understandings of religious liberty and church-state separation. Story’s claim that non-exclusive religious assessments were compatible with religious liberty thus indicated his own belief in the need for public support and encouragement of religion. As late as 1833, Story still supported religious establishments. During the final debate surrounding the abolition of the general assessment for religion in Massachusetts, Story told his friend the Reverend John Brazer that he opposed the “proposition in our Legislature to destroy the third article on the public maintenance of religion in our constitution,” calling the move a “rash experiment.” Following the vote for disestablishment, Story lamented: “Who would have thought that so vital an interest to piety, and morals, and independent freedom of opinion, would have been yielded up in the House of Representatives, with so little show of debate?” Story, who is often cited as an authority on the original understanding of the First Amendment, opposed disestablishment to the bitter end.62

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One of the most detailed expositions on the religious basis for the law took place in a dispute between Thomas Jefferson and Story. Several modern-day commentators have interpreted this episode as an early battle for the soul of the establishment clause, a battle that Story reputedly won. The fact that Story’s view “prevailed” has been used to discredit the Jeffersonian perspective that the First Amendment’s establishment clause was designed to erect “a wall of separation between church and state.” More likely, the prevalence of Story’s view during the antebellum period had more to do with his influence among the bar—especially among Federalist and Whig judges—and the fact that he outlived Jefferson by twenty years, than it did with the greater accuracy of his interpretation of the First Amendment.63 In the summer of 1824, two years before his death, Jefferson wrote a letter to the English radical John Cartwright in which he attacked the idea that Christianity was part of the common law. Though the impetus for the letter is unknown, Jefferson might have raised the matter in response to the recent blasphemy decision in Updegraph. In the letter, Jefferson set out a historical argument to show that the maxim, as popularized by Henry Finch’s 1627 book, had come about through a mistranslation of a Latin phrase stating that the law recognizes “ancient scripture” by substituting the words “holy scripture.” Relying on Finch’s mistaken work and on subsequent applications of the maxim by Hale and Blackstone, other English jurists had perpetuated the mistake. Despite the “palpability of the error,” Jefferson claimed that judges had “piously avoided lifting the veil under which it was shrouded. In truth, the alliance between church and state in England, has ever made their judges accomplices in the frauds of the clergy.” Through this “judicial forgery,” Jefferson argued, “the Bible, Testament, and all [church doctrine was] ingulphed into the common law without citing any authority.” In an apparent jab at James Kent, Jefferson charged that Federalist judges were perpetuating the same forgery in America.64 The sentiments that Jefferson expressed in his 1824 letter were certainly not new. As early as 1770, Jefferson had written a short essay in his Reports of Cases Determined in the General Court of Virginia titled “Whether Christianity Is Part of the Common Law,” where he laid out a similar argument. Later in life, Jefferson also wrote several letters that elaborated on his thesis. In an 1814 letter to John Adams, Jefferson claimed that American judges had been too willing “to lay the yoke of their own [religious] opinions on the necks of others” and to perpetuate the fraud “by declaring that [Christianity] make[s] a part of the law of the land.”65 Adams’s response was supportive, remarking that Jefferson’s “researches in the laws of England, establishing Christianity as the law of the land, and part of the common law, are curious and very important.” Adams went on to express his own view of the subject:

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Religious controversies and ecclesiastical contests are as common, and will be as sharp as any in civil politics, foreign or domestic. In what sense and to what extent the Bible is law, may give rise to as many doubts and quarrels as any civil, political, military, or maritime laws, and will intermix with them all to irritate faction[s] of every sort.66 Jefferson’s lifelong disdain for the maxim indicates that he viewed it as inconsistent with church-state separation and an obstacle to full disestablishment and religious equality. While Adams did not quite share Jefferson’s expansive view of separation, he too acknowledged the controversy surrounding the maxim and that it was at tension with religious liberty. The release of Jefferson’s 1824 letter to John Cartwright merely confirmed the opinion of critics as to the former president’s apostate views. Edward Everett, editor of the North American Review, brought Jefferson’s letter to Story’s attention. Story, who had not seen the newspaper accounts, was incredulous. “It appears to me inconceivable how any man can doubt, that Christianity is part of the Common Law of England,” Story replied. Story’s short response to Everett did not include a legal rebuttal of Jefferson’s claims; instead, he noted briefly that the canons of the established Anglican Church were “as old as any other part of the Common Law which we can clearly trace.” “To suppose [Christianity] had not the entire sanction of the State, is, with reverence be it spoken, to contradict all history.”67 Story’s and Jefferson’s dislike for each other was well known. While serving in Congress as a Democratic-Republican, Story had disagreed with Jefferson’s economic programs as well as his overall political philosophy, and it was no secret that he considered Jefferson’s religious views to represent a threat to the moral virtue that was indispensable for the success of the republic. Jefferson in turn had reputedly called Story a “pseudo-republican” and a Tory—charges not unfounded—and had actively lobbied President James Madison to appoint someone else to the Supreme Court.68 Despite Story’s animosity toward Jefferson and the opportunity the letter presented to deride his nemesis, Story refrained from responding publicly for five years, well after Jefferson’s death. Finally, Story attacked Jefferson in his 1829 inaugural address at Harvard Law School, possibly in response to criticisms of the Marshall Court contained in Jefferson’s recently released memoirs: One of the most beautiful boasts of our municipal jurisprudence is, that Christianity is a part of the common law, from which it seeks to sanction its rights, and by which it endeavors to regulate its doctrines. And notwithstanding the specious objection of one of

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our distinguished statesmen, the boast is as true as it is beautiful. There has never been a period in which the common law did not recognize Christianity as lying at its foundations.69 Story was vague as to the extent to which the common law should recognize or enforce Christian teachings. However, the address suggests a development in Story’s thought beyond his initial reaction to Jefferson’s letter. In his 1824 response to Everett, Story had maintained that the true sense of the expression should be “no more than that Christianity is recognized as true, and as the established religion in England,” implying that Christianity deserved little more than judicial notice of its existence.70 At that time, Story was no doubt aware of the holdings in Ruggles and Updegraph. Now, in the Harvard speech, Story asserted that Christianity was part of the foundation of the law and was entitled to special protection, if not encouragement, under law. He noted with some satisfaction that religious holidays were considered dies non juridicus, that contracts inconsistent with Christian morals were considered void, and that, until recently, only witnesses who believed in God and an afterlife were competent to testify in court. Apparently, the claims contained in Jefferson’s letter had festered in Story’s mind over the years.71 Story did not allow any uncertainties in his Harvard address to lie dormant for long. He followed the speech with an 1833 article in the American Jurist titled “Christianity a Part of the Common Law.” For the first time, Story set out specifically to refute Jefferson’s claims with his own legal and historical argument. Story’s attack was twofold. First, he challenged Jefferson’s interpretations of Finch and the subsequent English case law. Story contended that Jefferson’s analysis was so contrary to the weight of judicial precedent that it had to be considered “novel.” Giving Jefferson the benefit of the doubt, Story argued that, even if one accepted Jefferson’s translation, “[d]o not the words suppose that [Finch] was speaking of some superior law, having a foundation in nature or the Divine appointment, and not merely a positive ancient code of the church?” Beyond pointing to particular weaknesses with Jefferson’s historical analysis, Story also argued that tradition and current practice generally supported the maxim: Christian principles in the broadest sense, the fundamental precepts of right and wrong, had long been considered part of the law. “But independently of any weight in any of these authorities, can any man seriously doubt, that Christianity is recognized as true, as a revelation, by the law of England, that is, by the common law?” Despite his detailed exegesis, Story did not elaborate on the legal implications of Christianity being part of the common law. He omitted any reference to American cases such as Ruggles and Updegraph to illustrate how the maxim was to be applied. The inclusion of several English blasphemy

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cases leaves little doubt, however, that Story supported those American decisions and viewed them as proper applications of the maxim.72 One indication of how Story viewed the maxim’s application was the 1827 decision in Wakefield v. Ross, which he heard while riding circuit in Rhode Island. Wakefield involved a simple boundary dispute brought under diversity jurisdiction. During the trial, the defendant’s counsel objected to the competency of two Universalist witnesses on the ground that they did not believe in God or in a future state of punishments and rewards. Story agreed, ruling that the witnesses’ lack of religious belief rendered them incompetent to testify. People who do not believe in the existence of God or a future state, “or have no religious belief, are not entitled to be sworn as witnesses,” Story wrote, applying the traditional common-law rule. The “administration of an oath supposes, that a moral and religious accountability is felt to a Supreme Being, and is the sanction which the law requires upon the conscience of a person, before it admits him to testify.” Even though Story did not elaborate on the basis for the rule concerning oath taking, the connection to the maxim was clear. Because Christianity served as the foundation for the law, especially as the basis for all oaths upon which testimony relied, those people who disputed Christian teachings were disabled from participating within the system. Two years later, in his Harvard inaugural address, Story would refer to the oath requirement as one example of how Christianity formed part of the law.73 Story’s most detailed analysis of the relationship between Christianity and law and of the duty of government to support religion is set out in his Commentaries on the Constitution. First published in 1833, Story’s Commentaries was arguably the most influential treatise of the nineteenth century, and it affected popular and legal attitudes for generations. Probably no other work has so frequently been cited as reflecting the legal attitudes of the antebellum period. Indeed, conservative jurists and commentators—particularly those who have argued for a return to the “original intent” of the founders—have accepted Story’s narrow interpretation of the First Amendment religion clauses as authoritative, despite the publication of the Commentaries some forty-five years after the drafting of the Bill of Rights and Story’s lack of firsthand knowledge of the debates. That Story embraced the maxim at the same time that he offered his limited view of the religion clauses has been used as proof of the maxim’s verity and its consistency with First Amendment principles.74 Story revealed his view of the proper relationship between Christianity and the state in the first section concerning the religion clauses. The primary question presented by the religion clauses was whether there was a “right and duty of the interference of government in matters of religion,” Story wrote. The answer was simple:

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Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons who believe that piety, religion, and morality are intimately connected with the well-being of the state, and indispensable to the administration of civil justice. . . . [I]t is impossible for those who believe in the truth of Christianity as a divine revelation to doubt that it is the especial duty of government to foster and encourage it among all the citizens and subjects.75 This “duty of interference” was supported by several “great doctrines” of religion, which all people agreed were indispensable for a “well-ordered community”: a belief in one God and in a future state of rewards and punishments; and personal responsibility for actions founded on “moral freedom and accountability.” That these doctrines had a discernible Protestant ring to them was not surprising; Story believed that Protestantism was “far more congenial” with the principles of political liberty than Catholicism or any other faith and thus better suited for republican government. In fact, republican government and even civilized society depended on these doctrines for their continued existence. “Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion as the great basis on which it must rest for its support and permanence.” Because of the great debt owed to Christianity by republican society, few would deny that “it is the especial duty of government to foster and encourage [Christianity] among all the citizens and subjects.” Story referred to the Massachusetts system of religious assessments as a “pointed example” of the proper balance between religious liberty and the duty of government to support religion.76 With these first principles established, consideration of the specific prohibitions of the religion clauses became superfluous. The limitations of the establishment clause were to be read narrowly. In an oft-quoted statement, Story maintained that, at the time of the adoption of the First Amendment, “the general if not universal sentiment in America was, that Christianity ought to receive encouragement from the state,” provided such encouragement did not infringe on freedom of conscience and worship. Contrary to the Jeffersonian perspective, the establishment clause did not prohibit governmental support of religion but in fact mandated such “interference.” While Story did not go so far as to claim that financial support for religion was required under the Constitution, he implied that such aid should be allowed, provided it did not distinguish among Christian denominations.77 Story was not clear as to where he would draw the line on government support of religion. He set out several scenarios. At one extreme was an establishment of a particular sect that “excludes all persons not belonging to it, either

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wholly or in part, from any participation in the public honors, trust, emoluments, privileges and immunities of the state.” Story implied that this situation would violate religious liberty and be inconsistent with the establishment clause. But he compared that scenario with one in which the government “declare[d] that the Christian religion shall be the religion of the state, and shall be aided and encouraged in all the varieties of sects belonging to it . . . leaving every man to the free enjoyment of his own religious opinions.” This, Story suggested, was consistent with the above principles. Story did not discuss the possible legality of government actions that fell between his scenarios.78 Any doubt as to the connection between this interpretation of the religion clauses and America’s status as a Christian nation was quickly dispelled. For Story, the mandate for “interference” did not extend to religion generally but was limited to Christianity. In one of the more infamous passages in his Commentaries, Story remarked: The real object of the [First A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity: but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.79 Under Story’s schema, therefore, the duty to support religion extended to Christianity only, and then to Protestantism in particular. The prohibitions of the establishment clause were limited to forbidding the establishment of any one sect as the national religion. Nonpreferential aid to Protestant sects generally was permitted and even encouraged. As discussed earlier, while it is impossible to divine a single “intent” of the drafters of the establishment clause, Story’s cramped view is at odds with the record that does exist. The reported debates of the First Congress indicate that the representatives expressly rejected a narrow phrasing of the First Amendment that would have only prohibited the establishment of a national religion or a religious doctrine, settling instead on some of the broader wording that was proposed.80 James Madison, the moving force behind the amendment and a member of the drafting committee, understood the First Amendment to mean something quite different from Story’s version. Madison decried any “sort of alliance or coalition between Govt and Religion” and expressed approval of the notion that “Religion flourishes in greater purity, without than with the aid of Govt.” Madison also refuted Story’s argument that republican government relied on Christian virtues and was in turn obligated to promote Christianity, noting in 1819:

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It was the Universal opinion of the Century preceding the last, that Civil Govt. could not stand without the prop of a Religious establishment, & that the Xn. religion itself, would perish if not supported by a legal provision for the Clergy. The experience of Virginia conspicuously corroborates the disproof of both questions.81 Other leading figures, including Thomas Jefferson, George Washington, and even John Adams, in their public and private statements eschewed such extensive government involvement in religious matters. With the possible exception of those from New England, none of the founders advocated the preferential treatment of Christianity over other faiths.82 Coming when it did, the immediate audience for Story’s Commentaries were those engaged in the disestablishment debate in his home state of Massachusetts. Story set out a philosophical defense not only for financial support of religion, but for government encouragement and support of Christianity “generally as a matter of sound policy as well as revealed truth.”83 But Story was also responding to greater forces in the society that were advocating not just political disestablishment but its legal and cultural manifestations as well. During this same time, Story was defending Jasper Adams’s missive while disputing the recently released congressional reports on the Sunday mail delivery and the claims of radical skeptics like Frances Wright and Robert Dale Owen. As Story had related to Adams after reading the latter’s pamphlet The Relation of Christianity to Civil Government, “government cannot long exist without an alliance with Religion to some extent, [because] Christianity is indispensable to the true interests & solid foundations of all governments.” Story told Adams that he distinguished between the establishment of a particular sect, which he considered inconsistent with religious liberty, and “the establishment of Christianity itself, without any preference of any particular form of it.” And finally, Story was continuing the rebuttal of Jefferson begun in his Harvard lecture and American Jurist article. It was a critical time, and Story understood the interconnectedness of these issues for the future of church-state relations. Likely, he hoped that the authority represented in his Commentaries would steer America in the right direction.84 A year before his death in 1845, Story had one final opportunity to expound on his understanding of church-state relations and the Christian-nation maxim. The case of Vidal v. Girard’s Executors, long considered one of Story’s more important opinions, involved a challenge to the will of Stephen Girard of Philadelphia. Girard had left the residue of his estate, valued at over $2 million, in trust for the establishment of a school for “poor white male orphans.” The will provided, however, that “no ecclesiastic, missionary, or minister, of any sect

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whatever” could teach, visit, or be otherwise associated with the school. Girard’s will stressed that the provision was not designed to disparage any sect or religion but merely to keep the school “free from the excitement which clashing doctrines and sectarian controversy are so apt to produce.”85 The controversial provision gave Girard’s heirs an excuse to contest the will, and they acquired the services of none other than Daniel Webster to argue their case on appeal. Webster, a close friend of Story, delivered a memorable argument that lasted three days before a packed Supreme Court chamber. Webster claimed that the provision was void because it conflicted with both the public policy and common law of Pennsylvania, which declared Christianity to be part of the law. The effect of the provision, Webster asserted, was to exclude all aspects of Christianity from the education of the youth. Boys would leave the school at eighteen not only ignorant of Christian teachings but hostile to its principles. “They are to learn to be suspicious of Christianity and religion; to keep clear of it, that their youthful heart may not become susceptible of the influences of Christianity or religion in the slightest degree.” If such provisions were sanctioned by the courts, Webster continued, his argument reaching its crescendo, “[w]hat would be the condition of all our families, of all our children . . . of their morals, their character,” and of society itself? Would the Court permit a scheme that “subverts all the excellence and the charms of social life; which tends to destroy the very foundation and frame-work of society . . . which subverts the whole decency, the whole morality, as well as the whole Christianity and government, of society? No, Sir! no, Sir!”86 During his less hyperbolic moments, Webster argued that the law in Pennsylvania, which governed the construction of Girard’s will, specifically recognized Christianity, relying on the Pennsylvania Supreme Court’s holding in Updegraph, which declared that Christianity was part of the state’s common law. Other evidence of the maxim was found in state laws prohibiting blasphemy, regulating the Sabbath, and requiring religious oaths for office holding and court appearances. These laws and declarations revealed that “the preservation of Christianity is one of the main ends of government,” Webster insisted. “All, all, proclaim that Christianity, general, tolerant Christianity, Christianity independent of sects and parties, that Christianity to which the sword and fagot are unknown, general, tolerant Christianity, is the law of the land.”87 Webster’s argument, while meant to influence the entire Court, was directed at his friend Story, the Court’s intellectual leader. Story was intrigued with Webster’s arguments, writing to his wife that “the whole discussion ha[d] assumed a semi-theological character.”88 Yet, while expressing agreement with Webster’s underlying premise that government and society depended on Christianity for their continued existence, Story upheld the will’s provision. Speaking

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for a unanimous Court, Story addressed Webster’s claim directly, acknowledging that Christianity was considered part of the common law of Pennsylvania. But Story departed from his earlier defenses of the maxim by writing that “this proposition is to be received with its appropriate qualifications,” including those possible restrictions imposed by the state’s Bill of Rights. Story noted that Pennsylvania’s current free exercise clause extended privileges equally to all sects, whether Christian, Jewish, or infidel: So that we are compelled to admit that although Christianity be a part of the common law of the state, yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public.89 Story’s qualification that the maxim should not outweigh the rights of religious minorities, while not directly inconsistent with his earlier pronouncements, still represented a step back from those statements. He persisted, however, in his belief that Christianity was crucial for the survival of republican society. Where else but from the New Testament are the “purest principles of morality” to be gathered and learned, Story asked. “Where are benevolence, the love of truth, sobriety, and industry, so powerfully and irresistibly inculcated as in the sacred volume?” Yet, Story now appeared to acknowledge a greater limitation on the maxim’s application than he had before. While Christian virtues might be crucial for society, the ability of government to prefer Christianity, and thus impair religious nonconformity, was now more constrained.90 According to Story, the question raised by the offending provision was whether the mere failure to provide for religious instruction in the proposed school conflicted with the maxim. Story noted that the devise required nothing inconsistent with Christian teachings and that, under a narrow reading of the provision, only religious teachers were prohibited from the school, not religious teaching. Story saw no reason that lay teachers could not instruct in “the general principles of Christianity.” Because the offensive provision did not conflict with the law under this narrow reading, the will was valid. More important, the provision did not threaten the efficacy of the maxim, which continued to have authority.91 Nevertheless, in holding that the will’s provision did not offend either common law or public policy, Story had chipped away at the authority of the maxim he was so instrumental in perfecting. For the first time, Story acknowledged that institutions and programs could be neutral toward religion without being hostile toward it. Using the will as an example, Story stated that, before such provisions could be struck down, “[t]here must be plain, positive, and express

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provisions, demonstrating not only that Christianity is not to be taught but that it is to be impugned or repudiated.” Mere neutrality was not inconsistent with the “official” status of Christianity. Also for the first time—and at tension with his Commentaries—Story suggested that the state could not prefer Christianity over other faiths. This qualification undercut the argument so crucial to the maxim—that republican government relied on the public encouragement of Christianity such that secularity represented hostility.92 Second, in Vidal, Story limited the legal effect of the maxim by imposing a nuisance requirement for actions offensive to general morality. Under the nuisance doctrine, still in its infancy at that time, acts such as blasphemy could not be prosecuted solely because they contravened general societal mores or sensibilities. Instead, offensive acts had to be shown to have been “to the annoyance of believers or the injury of the public.”93 As discussed in the next chapter, the development of the nuisance doctrine in the nineteenth century was closely related to the decline of blasphemy and Sabbath law prosecutions and to the demise of the maxim in the law. By requiring a showing of actual injury beyond the mere contravention of general religious principles, the law undermined the notion that such principles were vital for the maintenance of republican government. The reason that Story was willing to qualify the maxim at this late point in his career is uncertain. He had always limited the maxim’s scope and had often differentiated between the promotion of sectarian doctrines and of the general principles of Christianity. However, his embrace of religious neutrality as an organizing theorem appears to conflict with his earlier belief that the government was obligated to encourage and promote Christianity. No doubt, Story was cognizant of the expanding religious diversity of the 1840s and aware that legal preferences for Protestantism now excluded more people from the benefits of citizenship. Most likely, he was also aware that state courts were beginning to question the maxim and limit its application in cases.94 Finally, Story appeared troubled by the transparent manner in which Webster and his clients had attempted to use the maxim to their advantage. As he wrote to his wife during the arguments, he “was not a little amused, with the manner in which, on each side, the language of the Scriptures, and the doctrines of Christianity, were brought in to point the argument.” Later, in a letter to James Kent, Story related that he thought Webster’s argument had been “an address to the prejudices of the clergy.” Whether late in life Story was finally recognizing some of the dangers inherent in the maxim as a legal authority will never be known.95 Most jurists and commentators did not pick up on how Story’s view of the maxim had developed between the Commentaries and Vidal, because in both places, Story had reaffirmed Christianity’s special status under the law. Through

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these and other writings, Story left a lasting legacy as the nation’s most eloquent advocate of the law’s dependence on Christianity. With Vidal, the maxim that Christianity was part of the common law reached its apex. The concept had been integrated into American jurisprudential thought, thanks in no small part to the works of Blackstone, Kent, and, in particular, Story. And with the Vidal decision, the concept had received the sanction of the highest court in the land. In its simplest form, the maxim instructed that judges should interpret laws consistently with general Christian principles and protect Christianity from contempt and ridicule. But the maxim also suggested an interdependence between the two institutions that neither time, nor constitutional disestablishment, could abrogate. And, as articulated by Kent, Story, and a handful of other antebellum jurists, the maxim reinforced the arguments of the religious reformers and revisionist historians who declared America’s religious origins. So long as the maxim retained validity, it served as an obstacle to fulfilling the promise of disestablishment.

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7 Legal Christianity Refuted

Legal Christianity is a solecism, a contradiction of terms. —Board of Education v. Minor (1873) No sooner had the maxim that Christianity formed part of the law become established than it began its decline into disrepute. Criticism of the maxim had always existed, as shown in the writings of Thomas Jefferson and Justice Marcus Morton, the dissenter in Abner Kneeland’s case. Beginning in the 1840s, the maxim came under attack from other fronts. These attacks were both overt and subtle, from forces both external and internal to the law. By midcentury, attitudes were shifting from viewing the law as responsible for reinforcing religious norms to considering it to be areligious. Demands for an efficient and impartial legal system that facilitated economic growth also influenced attitudes about the law’s religious character. Faced with evolving notions of a secular-based legal system, belief in the law’s Christian foundations began to crumble. Judges began to step back from broad pronouncements about the Christian character of civil government and law. Increasingly, Christianity was considered to be part of the common law only in a historical or “limited sense,” not normatively. Fewer judges were willing to rely on religious arguments or to justify their decisions on religious grounds. New secular justifications for religiously based laws appeared, such that the offense of blasphemy evolved into nuisance or disorderly conduct and Sabbath laws came

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to be justified on “health-and-welfare” grounds. Enforcement of Sabbath and sumptuary laws also declined, further indicating a change in perspective about the role of the government and law to reinforce religious principles. Even though allusions to the maxim appeared sporadically in decisions through 1900, they were always guarded or severely qualified. No appellate decision after 1868 relied on the maxim in any significant fashion, and by the end of the nineteenth century, it had become little more than a historical relic.1 Two factors in particular are responsible for the decline of the maxim and eventual disestablishment in the law: first, the legal reform movement that criticized the common law and sought to replace it with a system of codes and statutes that would make the law more predictive, scientific, and responsive to economic demands; and, second, a growing awareness among judges and officials of America’s religious diversity and of a need to give meaning to the constitutional guarantees of religious equality and church-state separation. Both impulses led to the decline of the maxim as a legal construct and to the adoption of secular rationales for laws that only recently had been justified by their religious basis. These impulses also brought about an expansion in the overall understanding of religious disestablishment in the United States.

The Reform Impulse in the Law The first explanation for the shift away from a religious perspective in the law and the gradual abandonment of the maxim as a legal theorem lies with the general development of American law during the antebellum period. Between 1800 and 1860, the U.S. legal system underwent a dramatic transformation from being a passive forum for the resolution of private disputes within relatively narrow fields—e.g., criminal law and real property rights—to an active institution that encompassed numerous areas of law and policy which aided the development of America’s capitalist economy. New fields of tort and corporation law appeared, while other areas such as contract law matured into active facilitators of the growing industrial economy. Legal historians have long recognized the crucial developments during this period, calling it the “formative era” or the “golden age” of American law.2 Morton Horwitz’s seminal book The Transformation of American Law, 1780–1860 presents a compelling account of the dramatic evolution in the law and legal system during the antebellum period. In the late eighteenth century, Horwitz argues, the common law “was conceived as a body of essentially fixed doctrine” with its rules echoing notions of stability and continuity instead of serving as instruments of social or economic change. As the new century

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progressed, a shift in attitudes occurred from viewing the law as an “expression of fixed values legitimized by custom to viewing it as an instrument to promote selected social ends.” According to Horwitz, the instrumental concept of the law emerged not only in reaction to the economic demands of the new nation but also as a means to effect social change. In order to accomplish these goals, the law not only embraced new legal disciplines that facilitated economic development, but more important, lawyers and judges changed their conceptions of the law as representing static, eternal principles. The law took on a more functional, amoral role, no longer grounded in set principles but growing and changing with the times.3 This transformation of the law directly affected attitudes about an interdependency between the law and Christianity. Those same forces that impacted the culture and law generally—industrialization, growing commercial markets, and westward expansion—also challenged conceptions about the immutability of the law and whether religious norms should be used to resolve legal controversies. Related to those external forces were two impulses in jurisprudential thought that also affected attitudes toward the law’s religious connections: the controversy over codification and the conceptualization of law as a science.4 The impulse toward codification of the law dated back to criticism of the British common law during the late 1700s and the subsequent popularity of Jeremy Bentham’s writings and the Napoleonic Code. Even though a majority of new states adopted the common law as the rule of decision, critics attacked it as being too British and not suited to the new American circumstance. Philadelphia lawyer Peter du Ponceau claimed that this disdain only increased during the national period in response to the Alien and Sedition Acts and to the practice of Federalist judges “reading and quoting in Courts of Justice of British authorities of a date posterior to the revolution.” By 1824, when du Ponceau was writing, a general “spirit of hostility” against the common law existed that did not “escape [even] the eye of the most superficial observer.”5 On one level, critics viewed the common law as arcane, inexact, and arbitrary, rather than reflecting immutable principles about fairness and justice. Timothy Walker, founder of the law school at Cincinnati College and a former student of Joseph Story at Harvard, disputed the common-law theory that “precedents when once established, are absolutely binding, and that consequently judicial discretion is limited to new cases.” In reality, judges were at liberty “not only to overrule the decisions of other courts, but even their own prior decisions.” Decisions at common law “take . . . the world by surprise. What men have considered settled, they suddenly find unsettled; and they begin to lose confidence in the stability of their rights.”6 Another criticism of the common law, frequently raised by Jeffersonians and Jacksonians, was that it embodied

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antidemocratic characteristics that were inconsistent with a republican form of government. New York lawyer William Sampson, an Irish immigrant trained at London’s Lincoln Inn, described the common law as a “mazy labyrinth” which “conceals a thousand sophistries dangerous to the principles which every citizen in our free republic ought . . . to maintain.” Robert Rantoul, a Massachusetts Democrat and advocate of codification, concurred that the common law was “subversive of the fundamental principles of free government, because it deposits in the same hands the power of first making the general laws, and then applying them to individual cases.” Partisanship was partially at work here, as many of the common law’s champions were Federalist and Whig judges who were frustrating Democratic policies. Nonetheless, accusations that reliance on “unwritten” law amounted to undemocratic “judicial legislation” found a receptive audience in the early republic. “The prevalence of laws never enacted by legislators, is inconsistent with the theory of our social compact,” Timothy Walker wrote. “One of these principles is, that a body of men, representing the people, and speaking in their name, shall, in the mode pointed out, frame laws for their government. The constitution recognizes no other legislative power, and no other modes of making laws.”7 Implicit in these criticisms was the premise, supported by republican theory, that the ultimate authority for the law rested in the people instead of emanating from a superior source. This led some reformers to challenge the higher-law arguments used to bolster the common law. Ohio lawyer John Milton Goodenow, an early critic of criminal prosecutions under common law, denied that the common law represented “emanations of Divine Will.” Even though Goodenow accepted that natural-law principles flowed from “the Allwise Legislator of the universe,” he insisted that such principles were abstract and not applicable to “human laws.” Rather than being based on higher principles, human laws were “necessarily of a positive, local existence.” Goodenow insisted that the divine-law basis for the common law was a “fallacious doctrine” that should be rejected. Peter du Ponceau referred to Goodenow’s 1819 treatise denouncing the common law in Ohio as having a “considerable degree of influence” on legal attitudes in the Midwest.8 Goodenow was not alone in disputing the common law’s higher-law foundations. Robert Rantoul claimed that, instead of resting on higher principles, the “Common Law had its origin in folly, barbarism, and feudality.” William Sampson, possibly the fiercest critic of the common law, denounced it as a “pagan idol” that was “praised and worshipped by ignorant and superstitious votaries.” To Sampson, the common law had less to do with higher principles and more to do with “Saxon barbarity.” Even moderate critics such as Timothy Walker disputed the lofty beginnings of the common law. “[N]either the antiquity of the

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common law, nor its present wide supremacy, prove anything, one way or the other, as to its comparative excellence,” Walker wrote in a widely read law review article. Because the common law was “well adapted to the age of barbarism in which it originated,” it was, “for that very reason, totally unfit for us.” Walker advocated a system of laws “in harmony with each other, and with the general spirit of our institutions.” These attacks, while directed chiefly at the common law itself, helped to demystify the law and challenge its reputed Christian basis.9 Attacks on the common law and its higher-law basis put conservative jurists on the defensive. At least initially, conservatives dug in their heels and proclaimed the glories of a higher-law system. Writing in his Commentaries in the late 1820s, James Kent insisted that, instead of being arbitrary and subjective, the common law rested on universal and immutable principles of “natural justice” that transcended any particular decision. No one more fervently defended the common law and its higher-law origins than Whig senator Rufus Choate, who wrote that the common-law system had been subjected to “the reason and justice of successive ages and generations” and “the best thoughts of the wisest and safest of reformers.” Because the American common law represented a culmination of all legal thought, it was not extravagant to hold that “divine approval may sanction it as not unworthy of the reason which we derive from His own nature,” Choate wrote.10 Despite their best efforts, conservative jurists were unable to convince reformers that higher-law notions were a positive attribute of the legal system. To reformers, the common law did not rely on higher, immutable principles but, as Walker asserted, “may be truly said to lie hidden in the breast of the judge.”11 These attacks on higher-law notions helped to undermine perceptions that the law incorporated eternal religious principles. On one level, reformers disputed any historical connection between the common law and Christianity, emphasizing instead the law’s slow development out of Anglo-Saxon barbarism. More generally, reformers denied that the law ever represented static, eternal principles; all laws were inherently “changeable and arbitrary in their formation.” Because of their malleable nature, laws should rest on the will of the people and not on the whims of conservative judges. Arguments of the law’s immutable quality were not only false, they also stood in the way of making the law more practicable and responsive to human needs. By refuting the law’s immutability, the reformers implicitly disputed that the law incorporated Christian principles.12 Ultimately, codification failed to attract sufficient support within the legal community as an alternative to the common-law system. The enormity of the task of reformulating the law eventually stalled the movement. Also, most

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advocates of the common-law system recognized the need for reform and were willing to make concessions. Joseph Story, an otherwise ardent defender of the common law and its higher-law basis, supported the codification of newer legal disciplines such as corporate law as a way of improving and simplifying the law. Story even served as head of an 1836 Massachusetts commission that recommended refinement of the state’s common law and the codification of several areas of practice.13 Supporters of the common law also were not above stealing some of the reformers’ strongest arguments. An 1831 commentator in the American Jurist wrote that, instead of being unresponsive to changing needs, it was the “flexibility of customary law” that “constitutes its great excellence and gives to it a signal advantage over the inflexible and unchanging rules of a written code.” Through minor reforms and adjustments, the common law was able to emerge victorious over the forces demanding comprehensive codification. The victory came at a price, however; in order to survive, the common law had to surrender claims that it was based on higher, immutable principles.14 Related to the drive for codification was a larger impulse to make the law more systematic or “scientific.” Lawyers and judges, viewing the economic and demographic demands on the new nation, recognized the need to reorganize and categorize the law—to make it more predictable and hence more practicable. Unlike the controversy over codification, however, jurists from all sides of the reform issue embraced a scientific approach to the law, although they diverged on what that meant. As one historian has remarked, “the term ‘science’ became something of a shibboleth; it appeared in every variety of legal writing” and stood for various types of reform. The parallels between law and science became a popular theme in antebellum legal writings, and while the term “scientific approach” was casually used and rarely defined, it stood for a new perspective of how lawyers viewed their discipline. Over time, this scientific impulse toward greater systematization would be more effective than the codification movement in transforming attitudes about a religious aspect to the law.15 The drive to make the law more scientific even attracted such staunch common-law defenders as Story and Kent. Both men embraced the new scientific approach partially in reaction to criticisms by codification proponents but also out of a recognition that new economic and social demands required a more efficient legal system. In his 1829 inaugural address as the Dane Professor at Harvard Law School, Justice Story drew several parallels between the common law and scientific inquiry. In contrast to his writings on natural law, suggesting the superiority and immutability of certain legal principles, Story proposed that “the Common Law, as a science, must be for ever in progress; and no limits can be assigned to its principles or improvements. In this respect, it resembles the

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natural sciences, where new discoveries continually lead the way to new, and sometimes to astonishing, results.” Story advocated a scientific approach for the emerging legal disciplines of corporation and contract law. Kent, too, urged the adoption of scientific methods for the practice of law, beginning his 1824 introductory lecture at Columbia College with the statement “There is no science that excels that of the law.”16 Some writers even transposed natural-law concepts into scientific terms. In his 1852 treatise, The Theory of the Common Law, James M. Walker wrote that the “science of law” was a “body of rules of human conduct which are universally recognized as obligatory.” This universal law, Walker maintained, involved “the relation of man to God,” such that law derived from the universal represented “the true relation between man and man,” otherwise known as “justice.” For Walker, the scientific approach to the law was the means to identify the universal natural law. But Walker was in a minority; most lawyers did not view the scientific approach as confirming higher-law notions but as representing a new way to view the law. An adaptive and rationally based legal system tied to economic demands meant that most laws had little relation to immutable, higher principles. Inevitably, the new approach took its toll on higher-law notions.17 The development of contract law is illustrative of how the impulse toward a more systematic and commercially responsive legal system helped to bring about disestablishment in the law. Prior to the nineteenth century, contract law was considered an adjunct of property law with courts adhering to rules that contracts depended on notions of a “just price” or the fairness of an exchange. Under this concept, judges or juries could ignore the intent of the contracting parties as to conditions or price and substitute their own views of whether agreements were equitable, using abstract notions of fairness. As Pennsylvania chief justice Thomas McKean wrote in 1796, “principles of morality, equity, and good conscience” furnished the “adequate rule” for determining whether a valid contract had been made. Community norms regarding morality and equity, not the will of the parties, determined the validity of contracts.18 With the development of more extensive markets following the turn of the century, the concept of equitable prices tied to set notions of fairness came under attack. Fluctuations in prices due to distance and transportation delays, plus the need to contract for the future delivery of goods with prices to be determined in advance, created pressure on courts to abandon the old rules favoring equitable value. One of the first law writers to advocate abandoning equitable considerations was Guilian C. Verplanck, author of An Essay on the Doctrine of Contracts, Being an Inquiry How Contracts Are Affected in Law and Morals (1825). Verplanck insisted that an “equity of price” doctrine based on “a high and pure

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morality” was a “radically erroneous” principle and “without question inapplicable to the real state of multifarious concerns, and varied interests of modern civilized life.” In Verplanck’s mind, contracts should be based on the “plainer truths of [the] political economy” that took into consideration the intent of the parties and the realities of the market. This new approach to bargains and pricing was consistent with the “science of modern growth,” Verplanck insisted, while it avoided relying on “a false metaphysic in relation to equity.”19 Nathan Dane, author of one of the first legal treatises, also advocated separating contract law from equitable considerations. While much of his General Abridgment contained traditional restatements of accepted legal precepts, his discussion of the growing fields of contracts and torts revealed his attachment to the new scientific trend. In his introductory comments about contracts, written in 1823, Dane argued for separating the basis of contractual relations from equity and morality: In some special cases, the law of the land and morality are the same, when this law has for its object, solely, reason and conscience to guide, but differs when policy or arbitrary rules must, also be regarded. “Virtue is alone the object of morality”—but this law has, also often, for its object, the peace of society, and what is practicable.20 For Dane, even though a breach might result in an advantage which appeared to be “an act of injustice in the eyes of morality,” that alone should “not [be] the means of restitution in the eyes of the law.” The price of the thing agreed upon would set the proper remedy, regardless of whether a promise might have been broken. Dane urged that recovery should ultimately rest on the will of the parties as set out in the contract or on positive law, not on considerations of equity or morality. With the encouragement of Verplanck’s and Dane’s works, written primarily in response to growing market demands, contract law soon abandoned its reliance on considerations of equity. In its place arose a body of law that used “the mutual agreement of the parties” as its touchstone, not considerations of equity or morality.21 Verplanck and Dane were not alone in seeking to make the law more rational and predictable by separating it from moral considerations. Timothy Walker, so influential among a new generation of lawyers in the Midwest, urged a similar approach in his introductory lecture at the Cincinnati Law School in 1837. Walker admonished his students to develop a proper appreciation for the “science of law” which, he maintained, “is not part of religion or ethics.” Those “who consider jurisprudence as looking forward into eternity” commit “an egregious error.” Instead, the law “begins and ends with this world. It regards men only as members of civil society. . . . Religion and morality embrace both

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time and eternity in their mighty grasp; but human laws reach not beyond the boundaries of time.” Walker went on to argue against the legal enforcement of religious duties. He “rejoiced” that the government dared not interfere “between man and his Creator” and that “the blasphemous union between church and state, and the impious usurpation of Almighty jurisdiction” could “never pollute our legal annals.” The nation had no greater reason for self-congratulation than the fact that lawmakers were “confined to their proper sphere; which is, to provide for our social welfare here on earth, and leave each to select his own pathway to immortality.”22 The allure of the scientific approach did not lead commentators to argue that the law should be divorced completely from moral considerations. Dane’s General Abridgment contained a chapter on “Crimes against Religion and Morality,” where the author argued that “a good system of government cannot be supported in any nation, especially a free one, without morality,” which could not “be preserved pure and sound without religion.” Dane generally supported laws criminalizing blasphemy, profaneness, and other acts of gross immorality, though he believed that only overt acts, done publicly and tending to breach the peace, should be punishable. Enforcement should be “very liberal on this interesting subject,” Dane urged, so as to “pay every due respect to religious liberty, and the sacred rights of conscience.”23 Walker’s position on sumptuary laws was more equivocal. He disputed claims that “human law has no concern with our moral condition.” Law could improve public morality, Walker argued, not because of fear of “future retribution, but because our social welfare, here on earth, is intimately connected with our moral condition.” For Walker, regardless of whether a law complemented religious doctrine, “still, [its] proper function remains the same.” The “positive regulations of municipal law” governed human conduct, not religious concepts of morality. Thus, both scholars viewed sumptuary laws as performing essentially secular functions, not as fulfilling religious purposes.24 This desanctification of the law accelerated as new legal fields were established. In 1819, the Massachusetts Supreme Judicial Court adopted the principle of limited liability for corporate shareholders, thereby separating fault from liability and recognizing financial limits to otherwise compelling claims. By 1851, the same court, now under the direction of Chief Justice Lemuel Shaw, firmly established the principle of government’s police powers, which empowered legislatures to make “all manner of wholesome and reasonable laws . . . not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth.” The notion that legislatures could act as they saw fit, notwithstanding natural-law arguments of the sanctity of property rights, and pass positive regulations or “municipal laws” divorced

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from moral considerations undermined arguments that the law rested on any higher source.25 The development of the scientific approach and the rise of new legal disciplines thus helped to bring about disestablishment in the law. Not only did this transformation affect attitudes about whether Christian principles were reflected in the law generally, the shift in perspective would also lead to the deletion of moral and religious justifications for laws and to the substitution of secular rationales.

The Substitution of Secular Theories Oaths The first area of the law to feel the secularizing pressure of legal reform was the rule requiring a religious belief for oath taking. As described in the previous chapter, the effect of the traditional rule requiring a belief in God and in future punishment had been to exclude many Universalists, Catholics, Jews, adherents of other faiths, and skeptics from testifying in court or entering into legal or commercial arrangements requiring an oath. This requirement, though disqualifying only a small number of citizens, nevertheless impeded the efficient operation of the legal system by excluding otherwise competent testimony. The rule also interfered with commercial expansion, as merchants and businessmen entered into dealings with these religious nonconformists at their peril. At its most basic level, the oath requirement represented the law’s preferential treatment of Protestant Christianity while it deprived non-Christians of important attributes of citizenship. Beginning in the 1820s, courts began to relax the rule to allow oath taking by anyone who could affirm a belief in God and in the sanctity of the oath. In one of the first cases, the New York Supreme Court declared in 1823 that “[t]he proper test of a witness’[s] competency on the ground of his religious principles, is, ‘whether he believes in the existence of a God who will punish him if he swears falsely.’” Economic considerations were largely responsible for this modest refinement, with one court remarking, “The progress of science and civilization, and the demands of commerce, have led to a relaxation of th[is] rule.”26 Emerging notions of religious toleration, brought on by the growth during the antebellum period of new religious movements, many of which held divergent doctrinal beliefs, also led to the relaxation of the rule. Courts began to acknowledge that, even “among Christians, there [was] an almost infinite diversity of opinion in regard to [religious doctrines].” A proposed witness’s lack of belief in future punishments was “an opinion in which he is by no means

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singular,” remarked one court in midcentury, while another described the traditional rule as “narrow, bigoted and inhuman as the spirit of fanatical intolerance and persecution.” As the Vermont Supreme Court noted in an 1841 decision, sober and “religious men, ha[d] for many years, in ruminating upon reforms in our system of jurisprudence, sincerely regretted the very necessity of oaths.” The adoption of the more permissive rule was “an important step in simplifying the system of municipal law.”27 By the early 1840s, the tide had turned from requiring a belief in future accountability to merely requiring some belief in God and in a religious obligation to tell the truth. Writing in the 1841 decision, the Vermont Supreme Court stated, “There does not seem any more propriety in requiring the witness to believe in a future state of existence even, much more of punishment in a future life, than in any other, or indeed all the articles of the christian faith.” The Ohio Supreme Court concurred in 1840 that it was “pretty generally settled . . . that whoever believes in the moral influence and control of an overriding Providence in this life, and that an oath is binding on his conscience, is competent to testify.”28 That view was confirmed by commentator Simon Greenleaf, who wrote in his 1842 treatise on evidence: “It may be considered as now generally settled, in this country, that it is not material, whether the witness believes that the punishment will be inflicted in this world, or in the next. It is enough, if he has the religious sense of accountability to the Omniscient Being, who is invoked by an oath.”29 Before the end of the decade, supreme courts in Ohio, Vermont, Alabama, Maine, South Carolina, and Pennsylvania had all adopted what the latter court called “the modern doctrine[,] well supported on reason and on authority.” Other state courts followed suit in the 1850s, primarily in response to commercial and legal pressures.30 The shift to the more permissive rule was so complete by midcentury that the Pennsylvania Supreme Court could state conclusively: A belief in a future state of rewards and punishment[s] is not essential to the competency of a witness, nor is it cause of exclusion that one does not believe in the inspired character of the Bible. The test of competency is, whether the witness believes in the existence of a God, who will punish him if he swear falsely.31 This transition to a more permissive rule regarding oath taking removed the final disabilities on Catholics, Universalists, and Jews from being sworn and testifying in court. Only atheists and followers of Asian religions were now excluded from the privilege of the oath. The movement away from the traditional rule was significant, but it did not challenge the core religious presumption underlying the oath. At the same time

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as courts proclaimed the virtues of the permissive rule, many still affirmed that a belief in God was a prerequisite for testifying. For example, in the process of adopting the more permissive rule in 1841, the Alabama Supreme Court criticized the trial court for going a step further and declaring that “the substance of the oath had nothing to do with Christianity.” On the contrary, the high court insisted, the oath was “a solemn adjuration to God” designed “to punish the affiant if he swears falsely.”32 For many judges, mere legal constraints were insufficient to ensure the veracity of a declarant’s testimony. Reliance upon some religious sanction was still necessary, as the Illinois Supreme Court warned in 1856, because a “liability to civil punishment for perjury, and fear of it, will not substitute that moral, conscientious obligation under which witnesses are required to state facts as testimony, and which is supposed to be imposed and exist by an oath taken by one entertaining such belief.” “The substance of the thing is, every oath must have a religious sanction,” reiterated the North Carolina Supreme Court in the same year.33 Yet, no sooner had the permissive rule become established than some judges began questioning the necessity of any religious requirement for oaths. The same arguments for expanding the privilege by doing away with a belief in future punishments—commercial predictability, legal efficiency, and religious toleration—led to an even greater relaxation of oath requirements. In one of the earlier cases to adopt the permissive rule, Brock v. Milligan (1840), the Ohio Supreme Court speculated “whether the great ends of justice, the object of all law, would not be promoted, even if this requisition were swept away, and no inquiry permitted as to what concerns the duties of the creature to his Creator.” Even though the case for removing all disabilities was compelling, the Ohio court said it was constrained “to declare the law as we find it” and to leave revisions in the law to the state legislature.34 The Vermont Supreme Court, in the 1841 decision quoted above, also opined that many people were “even question[ing] the necessity of resorting to the sanction of an oath” in judicial proceedings. “It is doubtless true, that there exist very grave reasons in favor of adopting even the latter opinion,” the court remarked. Like the Ohio court, however, the Vermont court felt it was not authorized “to inquire what, upon principles of expediency or propriety, the rule of law should be, but what it is.” Yet judges on both courts believed that principles of religious conscience and toleration should prevail over antiquated notions of the law’s reliance on Christianity.35 With the religious prerequisite for oath taking being openly questioned, it was only a matter of time before a court rejected the requirement outright. The first to do away with all religious requisites for testifying was the Virginia Supreme Court. In Perry v. Commonwealth (1846), the defendant, charged with

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felony homicide, had objected at trial to the competency of a prosecution witness who had admitted that he did not believe in a future state of rewards and punishments. On appeal, Justice John Scott brushed aside the defendant’s complaint about the witness’s disbelief in future accountability and declared that all people, religious and irreligious, were competent to testify. Acknowledging that the permissive rule had expanded the privilege of testifying, Scott wrote that even that rule “still retains a portion of its intolerant spirit . . . [and] some of our sister States have exercised an inquisitorial power over the belief of witnesses.” Scott held that courts in Virginia were bound by the state constitution, which “wholly and permanently separated ‘religion, or the duty which we owe to our Creator,’ from our political and civil government” and placed “all religions on a footing of perfect equality; protecting all; imposing neither burdens nor civil incapacities upon any; conferring privileges upon none.” Regardless of common-law tradition, courts could no longer impose a religious test on civil privileges. Witnesses would henceforth be bound only by the “pains and penalties of perjury.”36 In Perry, the Virginia Supreme Court relied on the state’s Declaration of Rights and Jefferson’s Act for Establishing Religious Freedom, both documents being more generous toward religious liberty than those found in many states. Still, Virginia’s initiative was followed shortly by decisions by the supreme courts of Michigan, New York, Massachusetts, and California, with all four benches interpreting new or existing constitutional provisions as abolishing all religious requirements for oath taking. Writing in 1858, the Michigan Supreme Court held that the state’s recent constitutional enactment eliminating incompetency on account of religious opinions effectively barred all inquiries into a witness’s religious belief “unless it [could] be shown that belief or disbelief in a God has no reference to ‘opinions on the subject of religion.’” Whether intended by the legislature or not, the court held that the new provision extended protection to “all subjects of religion,” even disbelief.37 Following the Civil War, the movement toward removing all religious qualifications for oath taking and testifying continued. By 1877, the Iowa Supreme Court joined the trend in holding that “[e]very human being of sufficient capacity to understand the obligation of an oath is a competent witness in this State.”38 In 1872 and again in 1877, the California Supreme Court applied its earlier holding to the issue of dying declarations—an exception to the hearsay rule that admits into evidence the statements of a dying person on the rationale that the declarant would not lie when facing death. In the latter case, People v. Chin Mook Sow, the California court rejected an accused murder’s argument that the victim’s dying statements were inadmissible because the victim, being Chinese, did not hold to a traditional belief in God or life after death. If live

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testimony could not be excluded on religious grounds, then a decedent’s declarations were also admissible, “even had it appeared that the deceased had no religious belief” and did not fear death.39 Finally, a few jurisdictions extended the new rule to prohibit attorneys from using the religious beliefs of sworn witnesses to attack their credibility. The purpose of excluding all inquiries into religious belief “was to make the divorce between church and state irrevocable,” the Kentucky Court of Appeals wrote in 1882, and “to establish unequivocally that the province of the government is to deal with the temporal relations and affairs of men, and in no case with matters spiritual.” “[U]nder no circumstances, should any burden be placed upon any one, or any penalty enforced on account of opinion in reference to religious or spiritual matters.”40 Unlike the earlier shift from the traditional to the permissive rule, the movement toward the complete abandonment of religious requirements for oath taking was slow and would continue into the next century. For some judges, the religious assumptions underlying oath taking were too great to ignore. In one instance, the Ohio Supreme Court held that a belief in God was still necessary for oath taking, despite changes in the state constitution abolishing religious disabilities. The court surmised that, because the same constitution still required oaths, a witness’s “moral nature must be strengthened, and his conscientiousness be quickened, by a belief in a supreme being, who will certainly, either in this life or the life to come, punish perjury.” Increasingly, such sentiments represented the exception. In a majority of decisions after 1860 upholding a religious requirement, judges simply affirmed the rule without expounding upon its religious significance. As the century came to a close, the number of cases involving oath challenges declined, suggesting a relaxation in the enforcement of the rule in those jurisdictions retaining oath requirements. Through the reforms in oath taking and the relaxation in enforcement, the law lost one of its closer connections to Christianity.41

Probate Law The movement toward legal disestablishment was also evident in the area of probate law dealing with charitable bequests. Like Daniel Webster had done in Vidal v. Girard’s Executors, lawyers representing disgruntled heirs sometimes used the maxim to challenge devises to religious and charitable institutions, arguing that a testamentary use did not conform with a public policy that recognized Christianity. These challenges placed judges in the awkward position of determining whether a beneficiary was sufficiently religious or whether a proposed application of a devise constituted a “pious use.” By midcentury, judges were increasingly resistant to claims that bequests be “strictly consistent

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with the orthodox faith of Protestant Christians.” Instead, courts began following Justice Story’s lead in Vidal to uphold “irreligious” bequests if they met the basic testamentary requirements, even when they conflicted with accepted Christian norms. A legal system that valued uniform and predictable results had no room for outcomes that depended on the religious predilections of individual judges.42 In one of the earliest cases reflecting this trend, a New York court in 1849 rejected a claim that testamentary uses had to be consistent with Protestant religious teachings. Struggling with its authority to determine whether a bequest was sufficiently pious, the court in Ayers v. the Methodist Church declared that, because “all religions are tolerated [in the United States], and none is established, each has an equal right to the protection of the law.” Setting out the standard that New York courts would follow in the future, Judge John Duer held that “all uses directed to a religious object must be equally proscribed, or all must be upheld as pious.”43 A year later in Andrew v. New York Bible and Prayer Book Society, the same court again confronted claims that a bequest to a religious society was inconsistent with the maxim. Once again, Judge Duer disavowed that judges had authority to make such inquiries, stating that he knew of “no possible means by which judges can be enabled to discriminate, between such uses as tend to promote the best interests of society by . . . inculcating the practice of true religion” and those uses “which can have no other effect than to foster the growth of pernicious errors, to give a permanence to the reveries of a wild fanaticism, or encourage and perpetuate the observances of a corrupt and degrading superstition.” The state constitution rendered courts powerless on matters of religion. Significantly, in both cases, Judge Duer viewed the constitutional requirement of religious equality as subordinating the common-law practice that reinforced religious customs.44 Judge Duer’s opinion is also significant because he expressly considered whether the maxim provided the standard for evaluating religious devises. “Christianity, it has been asserted, is now, in a modified sense, the religion of the state” and “furnishes the test that is desired, so that in judging the validity of a use as pious, we have only to inquire whether it is in harmony with the doctrines that Christianity teaches.” Duer flatly rejected this argument. While demurring that the “truth of the maxim” might be admitted in a “very partial and limited sense,” Duer denied that the concept had any real meaning: [I]f we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning and untrue. If Christianity is a municipal law, in the proper sense of the term, as it must be if a part of the

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common law, [then] every person is liable to be punished by the civil power who refuses to embrace its doctrines and follow its precepts.45 Duer castigated “judges and text writers” for their frequent use of the maxim, noting that “few had chosen to examine its truth or attempt[ed] to explain its meaning.” Unlike those judges who gave the maxim lip service, Duer refused to accept “any sense of the maxim which those who assert its truth may wish to attribute to it.” Any arguable meaning would “create new difficulties, quite as impossible to overcome as those that have already been stated.” Because the common law had not identified any particular definition of Christianity to be applied in legal matters, it was impossible “to determine whether a particular use, alleged to be pious, is or is not consistent with the truth which Christianity reveals.” Duer charged that those judges who applied the maxim relied only on personal “judicial knowledge of what Christianity is.” This, he asserted, presented an obstacle to religious liberty that was “not merely real and serious, but insurmountable.” For Duer, the maxim and the constitutional guarantees were irreconcilable.46 Andrew is thus significant not only for its contribution to probate law, but also for its clear refutation of the maxim that Christianity formed part of the law. Coming from a New York court only forty years after Kent’s seminal decision in Ruggles, Andrew highlights how quickly judicial attitudes toward the law were changing and how the maxim was falling into disrepute. Not only were judges insisting that laws be based on secular rationales, they were more willing to criticize the maxim in their decisions. Here, the catalyst for legal disestablishment was not economic considerations but a growing appreciation for religious equality. Significantly, in both Ayers and Andrew, the court used notions of disestablishment to override the old rule; in doing so, it expanded the understanding of disestablishment. Courts in other jurisdictions followed the New York court by refusing to strike conditions in wills that were alleged to conflict with Christian norms. In 1871, the Indiana Supreme Court declined to uphold a bequest to “the orthodox protestant clergymen of Delphi” on the ground that it possessed “no power to investigate questions of religious faith or belief or to determine who are orthodox or who are heterodox.” Acknowledging that the testator had “the undoubted right to prescribe a standard or test of orthodoxy or heterodox[y]” for his bequest, the court held that judges were not qualified to determine whether a belief or practice met a particular standard. The maxim neither empowered courts to act nor provided a guide for the resolution of such claims.47 In another instance involving a contested will, a court expressed annoyance with a claimant’s reliance on the maxim. In Maxey v. Bell (1870), Maxey,

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“a Baptist of long and good standing,” sought to disqualify the executor of his brother’s estate on the ground he was “an infidel of the order usually denominated Universalists.” As support for his challenge, Maxey argued that Bell’s appointment was inconsistent with the law under “a Christian Government.” Whereas Maxey might have succeeded with this argument forty years earlier, his attorney now miscalculated. Exhibiting little patience for the argument, the Georgia Supreme Court remarked that it was “a little extraordinary that the spirit of intolerance should need such precise restraints to keep it within bounds.” Rejecting the Christian-government argument, the court declared that the state constitution made all religions, and all believers, equal before the law. “In Georgia, a man may think as he pleases upon any subject, religious, philosophical or political, and is not, for that, under any civil or political disability.”48 In so holding, the Georgia court also made the connection between disestablishment and the abolition of the old, disqualifying rule. As was happening with other areas of the law, judges viewed the introduction of a religious issue as interfering with the need for efficiency and predictability in probate cases. More significant, it conflicted with expanding notions of religious equality.

Church Property Disputes Concerns about judicial scrutiny of the tenets of a religious society also found expression in disputes over the ownership and control of church property. Here, as with the area of probate law, a discernible disestablishing trend took place with courts seeking to disentangle themselves from adjudicating religious controversies. Unlike the other developments discussed in this chapter, however, the U.S. Supreme Court was directly involved in transforming the law. As discussed in the first chapter, a hallmark of colonial establishments was the award of certain legal and property rights to officially approved churches. Land was relatively plentiful and often easier to come by than tax revenues, so legislative bodies allocated land grants to established churches for the construction of meetinghouses and parsonages and to serve as income for their maintenance. In the southern Anglican colonies, the practice was systematized in an attempt to replicate the situation in England, with the legislatures dividing settlements into parishes; awarding land for church buildings, cemeteries, and glebe income; and assigning church wardens to manage the property holdings. A major indication of a religious establishment thus involved the property interactions between the colonial governments and the established churches.49 The Revolution and state disestablishment put these privileges and relationships into question. The primary issue in the southern states was whether

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Anglican churches, now Protestant Episcopal churches, retained their preexisting property rights which, in the eyes of many, perpetuated their privileged position. A related issue concerned the continuing authority of state assemblies to legislate for the benefit of religious bodies and the authority of civil courts to adjudicate church disputes. These issues came to a head in Virginia at the time the state assembly was embroiled in disestablishment. In 1776, the assembly had enacted a law confirming the rights of the Anglican Church to its lands and other property (as well as reaffirming the status of the “Church by Law established”). Later, during the 1784–1786 Virginia controversy over religious assessments, the assembly enacted a bill incorporating the Protestant Episcopal Church, giving it the legal authority to manage its own property and holdings. Dissenting churches generally opposed Episcopal incorporation on grounds that it gave privileges akin to an establishment.50 After the passage of Jefferson’s Act for Establishing Religious Freedom (1786), the assembly repealed the incorporation statute, though including a proviso authorizing all religious societies to hold property through trustees. In 1798 and 1801, however, in a moment of disestablishment zeal, the assembly rescinded the previous legal protections and authorized the seizure of vacant glebe lands belonging to the Episcopal Church as ill-gotten proceeds from its days as the established church. A lawsuit challenging the divesting laws eventually made its way to the U.S. Supreme Court. In Terrett v. Taylor (1815), discussed previously, Justice Joseph Story held for the church by applying principles of civil property law, expressing doubts about whether the legislature could repeal ownership rights acquired by the church under earlier valid laws. Despite passages in Story’s opinion revealing sympathy for the church’s situation, the holding rested on the ground that religious societies were no different from other legal entities, such that they held rights to property ownership under the civil law and could exercise them without interference by the state. Both principles were important steps in the understanding of disestablishment: apply neutral principles of civil law to religious entities but also guard against government entanglement in religious matters. As Professor Mark McGarvie has observed, this development was highly significant: by treating the formerly privileged churches simply as private corporations, the law solidified disestablishment.51 Where the competing principles from Terrett had the greatest impact was in internal church disputes over property ownership. Protestant denominations distinguished themselves not only on religious doctrine but also on matters of church organization and polity. Together, the democratizing impulses of the antebellum revivals, the competing and volatile faith claims, and the impending national conflict over slavery produced many church schisms, often

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resulting in disputes between factions over control of church property and assets. Conflicts over property ownership involved churches with episcopate and presbyterian systems, where hierarchal officials and presbyteries held title to church buildings, as well as churches with congregational polities. At times, disputes between warring factions ended up in civil courts, necessitating that judges adjudicate competing claims involving matters of religious doctrine or polity.52 The prevailing rule in the early part of the century was based on an 1817 English case, Attorney General v. Pearson, which had held that, in a dispute over church property, civil courts could determine which faction adhered closest to the traditional doctrines of the church (and was thus entitled to ownership of the disputed property). As Lord Eldon had written, it was the duty of a civil court “to inquire and decide for itself” not only the true authority of church adjudicatories, “but what [was] the true standard of faith in the church organization, and which of the contending parties . . . holds to this standard.” The Pearson or “departure from doctrine” rule thus authorized civil courts to engage in detailed examinations of church doctrines and procedures and to determine which faction was in error. The authority conferred by the Pearson rule was not limited to property disputes, however; once adopted, American courts applied it to settle other doctrinal claims, including the dismissal of clergy on theological grounds or whether a church’s adoption of “new theological measures” contravened the testamentary intent of prior bequests.53 State courts generally followed the Pearson rule throughout the antebellum era. One such case was an 1847 decision of the Pennsylvania Supreme Court, which awarded a bequest to the faction of a Lutheran congregation that had not ventured into “new measures, and new modes of worship.” The court wrote that it had the duty “to decide in favour of those, whether a minority or a majority of the congregation, who are adhering to the doctrine professed by the congregation, and the form of worship . . . with which it was connected at the time the trust was declared.” Antebellum judges applied the Pearson rule even though many appeared aware of the tension in a civil court arrogating the authority to adjudicate matters of church governance and doctrine. The New Jersey Chancery Court wrote in 1832 that while it “utterly disclaim[ed] the idea that . . . any court . . . has a right to enforce a creed, or system of doctrine or belief,” it “most unqualifiedly assert[ed] and maintain[ed] the power and right . . . to ascertain, by competent evidence, what are the religious principles of any man.” Professor Frank Way, in his study of the Pearson rule, asserts that, early on, American judges were reacting to “an increasingly atomistic religious scene” and seeking to maintain the religious status quo. One court that applied the rule exclaimed that it was seeking to ameliorate the “discord,”

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“division, heart-burning, and separation” that had been caused by a congregational schism.54 By midcentury, but chiefly after the Civil War, courts began imposing limitations on the Pearson rule, noting that they would defer to the authority of religious tribunals on matters of doctrine except where the controversy involved civil or property rights in need of judicial protection. Other courts stated that their authority was limited to examining only a “substantial departure from the original faith” or “a radical change of faith or doctrine.”55 Judges remained uncertain, however, where to draw those lines. In an 1846 opinion, the Pennsylvania Supreme Court rejected the Pearson rule, noting that “decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offence against the word of God.” Civil courts were “incompetent judges of matters of faith, discipline and doctrine.” Yet, the following year, the same court relied expressly on Pearson to determine which faction in a warring congregation adhered to the founding principles of the church and were entitled to control a sizable bequest.56 Clarity of the law came from an unlikely source: the U.S. Supreme Court. At the close of the Civil War, a dispute arose in a Louisville, Kentucky, Presbyterian church over the issue of slavery. The General Assembly of the Presbyterian Church opposed slavery and directed that Confederate sympathizers could not be church members nor be readmitted to membership until they repented for their sin of supporting slavery. This edict caused a schism within the Walnut Street Presbyterian Church with each faction claiming rightful ownership of the church building. The general assembly sided with the antislavery faction while the proslavery faction claimed that the general assembly had exceeded its authority under presbyterian rules of governance. One side brought a diversity action in federal court, with the case eventually working its way to the Supreme Court.57 In Watson v. Jones, the Court repudiated the Pearson rule, holding that civil courts could not generally adjudicate disputes between members of church congregations over the ownership and use of church property. Writing for the Court, Justice Joseph Miller held that this bar was particularly true where the dispute involved the interpretation of church doctrine or theology: [T]he rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the

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legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.58 In so holding, the Court applied common-law principles of corporate and property law: “Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes and their right to property, or contract, are equally under the protection of the law,” Miller wrote. But Miller clearly appreciated the First Amendment implications in applying the alternate rule: [I]n this country the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned.59 Miller viewed the Pearson rule as arising out of authority that existed under the British religious establishment. But notions of free exercise and disestablishment prevented U.S. courts from exercising authority over religious bodies when it came to matters of doctrine or organization. If civil courts were authorized “to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs . . . and fundamental organization of every religious denomination” would be open for judicial consideration, Miller wrote. “This principle would deprive these bodies of the right of construing their own church laws, would open the way to all the evils which we have depicted as attendant upon the [departure from doctrine rule].”60 With the holding in Watson, the Court took a significant step in the disestablishment of the law. On one level, the Court identified that core principles of disestablishment included the independence of religious bodies from secular authority and the lessening of entanglements between the two entities. On another level, the decision intimated that civil courts could apply secular civil law to some church disputes (those not involving the interpretation of doctrine or polity) and that civil law principles, such as corporate and property rules, applied to religious bodies and would suffice to adjudicate many legal controversies. Possibly, these ideals were already presumed in many legal circles.

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What is significant is that the Supreme Court aligned them with the First Amendment. Watson announced the autonomy of church doctrine and governance as bedrock principles of both religious exercise and disestablishment. “The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference,” Miller wrote, and “it has secured religious liberty from the invasions of the civil authority.”61 Coming before incorporation of the First Amendment, the Watson holding was only advisory, not binding on state courts. The decision was nonetheless influential, as state courts gradually adopted its holding or continued to limit the scope of the Pearson rule. Only two years following Watson, the New York Court of Appeals optimistically declared the new rule to be “settled law,” although that would take the remainder of the century. Courts also began to step back from earlier language expressing judicial responsibility to protect against religious dissension or controversy. Increasingly, judges sought to apply general principles of trust, property, and corporate law to religious bodies, though deferring to them on interpretations of religious doctrine.62 Professor Way argues that, in making this transition, courts generally were slow to identify church-state concerns as motivating the change. However, a review of many postbellum decisions reveals an acute awareness of the tension between the Pearson rule and contemporary understandings of church-state separation. As early as 1846, the Vermont Supreme Court, in refusing to follow Pearson, remarked that “our constitutional provisions in relation to religious freedom, forbid, that the authority of [Pearson] should here be recognized.”63 Following Watson, courts regularly noted the church-state principles at stake. The “complete separation of church and state” necessitated the Watson rule, stated one holding, while another asserted that “[c]ivil courts in this country have no ecclesiastical jurisdiction. . . . This doctrine inevitably results from that total separation between church and state which . . . is essential to the full enjoyment of the guaranteed rights of American citizenship.” This principle benefited both religious and civil institutions. “The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference,” declared the South Carolina Court of Equity. “On the other hand, it has secured religious liberty from the invasion of the civil authority.” The Nebraska Supreme Court concurred in 1895, stating that churches “should be free from the interference of the courts where there is nothing drawn into question but the jurisdiction of the church over one of its members or ministers or officers.” Not only was this rule “thought to be the best policy, and consistent with good government,” it was consistent with the principle that “the church and state [should] be completely severed, or as nearly so as may be and can be with due observance of all proper laws.” By the early

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twentieth century, state courts had generally moved from following Pearson to adopting rules similar to that announced in Watson. While not all courts assigned this change to constitutional principles, several did. Watson’s church autonomy principle did as much as any decision in furthering legal disestablishment during the nineteenth century.64

Dies Non Juridicus Reform impulses supporting greater legal efficiency soon came to bear on the principle of dies non juridicus and related rules prohibiting commercial and legal transactions on Sunday. Under pressure from commercial and business interests, antebellum courts became receptive to arguments that laws prohibiting all labor and commerce on Sunday, as well as rules barring recovery for injuries that occurred on Sunday or invalidating contracts executed on that day, impeded economic development and led to unjust results. One of the earliest criticisms of dies non juridicus came in a dissent to an 1834 Vermont decision refusing to enforce a contract executed on a Sunday. In a caustic opinion, Justice John Mattocks wrote that the invalidation of otherwise valid contracts usually “inflict[ed] the greatest injustice upon the least guilty of the practice, by allowing the most guilty, who adds dishonesty to his profanation, to escape with his ill-gotten gains.” Mattocks surmised that the only basis for dies non juridicus lay with the argument that the law recognized and protected Christianity. Mattocks rejected that premise, stating that whether “religion is a safer basis to found a government and the laws upon, than liberty and the voice of the people, it is not for us to decide. But it is well known, that our government and laws are not founded upon religion, as we have no test or standard of belief by law established.”65 Thirteen years later, the full Vermont Supreme Court endorsed Mattocks’s view of the law. Although declining to discard dies non juridicus (this time, upholding a Sunday contract by creating an exception to the rule), the court questioned the sense of barring recovery for a fraudulent contract merely because it was executed on a Sunday: If the general rule of holding contracts, made upon Sunday, void, is, also, to shield the contracting parties from the consequences of their frauds, and to allow the dishonest and abandoned to retain whatever they may be able to get possession of under such contracts, and at the same time release them from all liability upon their own contracts, then the rule itself will be productive of infinite mischief and should be discarded at once.66

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Courts in other states soon echoed the Vermont Supreme Court’s aversion to the rule. Instead of attacking dies non juridicus head on, however, judges first created exceptions to the rule. In 1841, the Pennsylvania Supreme Court refused to presume that a contract was executed on Sunday merely because the defendant had taken delivery of the property on that day. Particularly troubling to the court was the fact that the party who had benefited from the contract now sought to nullify the agreement on the basis of dies non juridicus. “Zeal for religious observance of the Sabbath is commendable,” the court wrote sardonically, “but it may avail itself in a very questionable shape.”67 Adding its own exception to dies non juridicus, the Ohio Supreme Court in 1853 read a statutory prohibition on “common labor” on Sunday narrowly so as not to bar the executing of contracts. “[M]aking a contract is business,” the court held, “and not work or labor,” which were prohibited under the law. The court also brushed aside arguments about the “sanctity of any day.”68 In 1855, the Pennsylvania Supreme Court again declined to apply the rule, this time reinstating a lawsuit to recover losses sustained when the plaintiffs’ cargo boat, traveling on a Sunday, hit an obstruction placed in the river by the defendant. After identifying a religious purpose for the Sabbath law (“that a Christian people should have laws to protect their day of rest from desecration”), the court refused to extend the principle of dies non juridicus to bar all forms of recovery for activities on that day. “Prohibited contracts, prohibited trades, and prohibited things, receive no legal protection; but persons are never outlawed, and their lawful property is under the protection of the state, even when used improperly.” Most significant was the Pennsylvania court’s response to the defendant’s claim that the maxim as interpreted in Updegraph required a broad application of the rule. While agreeing that the maxim applied in Pennsylvania, the court declared: Important as is the day of rest for man . . . [and] the religious institutions connected with it, and the civilization and moral refinement that grow out of and depend upon it and its institutions, . . . we cannot protect it by any such latitudinarian interpretation of the law we are appointed to administer as is expected of us here.69 When courts were faced with choosing between fealty to the maxim and permitting commercial activity, the former had to give way. The trend limiting the effect of dies non juridicus gathered momentum; by midcentury, most state courts were reading statutory constraints on Sunday business narrowly so as not to impede economic development. Only two years after narrowing the definition of Sunday “labor,” the Ohio Supreme Court interpreted the “works of necessity” exception to the state Sunday law broadly

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to include the shipping of merchandise on a Sunday before a river closed due to ice. Chief Justice Allen G. Thurman held that the necessity exception should no longer be reserved for life-threatening or unexpected situations; rather, “necessity may grow out of, or indeed be incident to, a particular trade or calling.” Expressing the growing pro-business sentiment of the late antebellum period, Thurman declared that “it is no part of the design of the [Sunday] act to destroy, or impose onerous restrictions upon any lawful trade or business.” Under Thurman’s expanded interpretation of a necessity, almost all business activity could now be exempt from Sunday laws.70 Most significant for legal secularization, Thurman proceeded to declare that the state’s Sunday law was based on public policy concerns and not designed to enforce a religious duty. “The act does not, to any extent, rest upon the ground that it is immoral or irreligious to labor on the Sabbath, any more than upon any other day.” Instead, Thurman wrote, the principles underlying the law were “wholly secular,” arising from “motives of public policy and [serving] as a civil regulation.” In so holding, the Ohio court became one of the first to dispute the religious basis for Sabbath laws and express a purely secular rationale.71 This trend away from strict enforcement of dies non juridicus accelerated after midcentury. In 1864, the Massachusetts Supreme Judicial Court rejected arguments that the principle barred the probate of a will that had been executed on Sunday, stating that an “interpretation so strict and narrow would not only not promote the object which the statute was designed to accomplish, but would produce serious inconvenience by impeding or preventing the performance of many common duties and offices of domestic life.” Similarly, in 1883, the Illinois Supreme Court held that a Sabbath law’s prohibition of Sunday labor did not extend to the conducting of business on that day. The Illinois court then extended its new exception to include contracts executed on Sunday, surmising that they, too, involved business transactions. The following year, a federal court interpreting Tennessee law rejected a defendant’s argument that a contract entered into on a Sunday was unenforceable because it was “the result of an immoral and irreligious act, and its enforcement here would shock the moral sense of the community.” In holding that contracts executed on Sunday were generally valid, the judge stated that the defendant must base his argument on “the settled public policy of this state,” not on “[v]ague surmises and flippant assertions as to what . . . would be shocking to the moral sense of the people.” The federal court also warned about the “danger of a civil court, which deals only with the temporal affairs of men, predicating a judgment on its interpretation of the bible commands relating to spiritual affairs.”72 Judges also became less willing to allow technical Sunday breaches to stand in the way of recovering damages for torts, especially when the breach had not

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contributed to the alleged injury. In the Ohio river shipment case mentioned above, Chief Justice Thurman also held that, because the Sunday shipment was legal, a worker could then pursue an action against the shipper for injuries sustained in working on that day. In 1881, the Maryland Court of Appeals allowed a plaintiff to sue for negligence even though the alleged injury occurred on Sunday. The fact that the injury was sustained “by reason of any neglect of [a] duty, or other wrongful act . . . on Sunday, can afford no excuse to the defendant, or exoneration from liability.” A more cautious Massachusetts Supreme Judicial Court in 1880 upheld a judgment for a plaintiff injured when traveling on a Sunday. “We must assume,” the court stated, “that the plaintiff was unlawfully travelling on the Lord’s day. But this fact does not defeat his right to recover, unless this unlawful act was a contributory cause of the injury he sustained.” The decision was especially significant as only seven years earlier the same court had held that a similar breach barred a plaintiff’s recovery.73 The U.S. Supreme Court, usually more a follower than an innovator during this period, also indicated that dies non juridicus hindered commercial and legal activity. In an 1860 shipping case similar to those decided in Ohio and Pennsylvania, the high court refused to interpret Maryland’s prohibition on Sunday labor to bar a suit for damages arising out of a defendant’s negligence. Construing the scope of the Maryland law narrowly, Justice Robert Grier stated that the Sabbath law imposed a “fine or penalty” for particular breaches, but covered “nothing more.” The fact that the injury occurred on Sunday did not mean that defendants could then “protect themselves from responding to the owners of the vessel for the damages suffered in consequence of the nuisance.” Quoting from an earlier Pennsylvania decision, Grier declared that it would “work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set it off against the plaintiff that he, too, is a public offender.”74 With this holding, the Supreme Court effectively gutted the theory of dies non juridicus at the federal level. The extralegal nature of Sunday would no longer be presumed from the mere existence of a Sabbath law. Equally significant, the Court also made clear that it considered the Maryland Sabbath law to be of a civil, not religious, nature. A Sunday law “define[d] a duty of a citizen to the state, and to the state only,” Justice Grier declared. Sabbath laws were civil and were to be construed narrowly so as not to unduly inhibit legal and commercial transactions.75 These decisions, although motivated primarily by economic considerations and a desire for judicial efficiency, were instrumental in secularizing Sabbath laws. In order to allow for the greatest breadth of commercial activity, courts severely narrowed the type of conduct that could be considered inconsistent

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with the special nature of the day. As the definitions shrank, the exceptions began to swallow the rule. Over time, those practices that were still forbidden appeared illogical when compared to all of the activity that was permitted. Even though economic considerations, and not disestablishment concerns, served as the impetus for this reform, courts were quite willing to dispute the religious justifications for the laws—not an insignificant development. Most important, through the process of expanding the exceptions to the Sunday laws, courts came to view commercial transactions as non-normative. Business was neither moral nor immoral, it was simply business. By devaluing a large category of conduct previously forbidden, courts set a precedent for viewing other regulated activities in amoral terms. Once conduct was viewed as being religiously neutral, its regulation needed secular justifications.

Nuisance The secular transformation of Sunday laws is most evident through the development of the law of nuisance, which came at the expense of constructive breaches. As discussed previously, early Sabbath decisions proceeded on the assumption that any breach threatened the religious purposes of the laws, which required an “outward respect and observance which may be deemed essential to the peace and good order of society.” Because the forbidden conduct was per se inconsistent with Christian norms, a breach was a crime in and of itself, rendering unnecessary any proof that the incident disturbed the peace or interfered with the worship of others. Any violation, regardless of how private or inoffensive, was actionable because it revealed “utter contempt” for God’s laws while it served to undermine the sanctity of the day. Few legal theorems were more dependent on the maxim than the theory of constructive breaches.76 The weak link in the constructive breach theory was that prosecutors and judges invariably considered the seriousness of a breach (and thus the amount of any disturbance) when it came to sentencing or damages. In one early case, Commonwealth v. Eyre (1815), the Pennsylvania Supreme Court suggested that breaches themselves should be viewed according to their degree of seriousness. Holding that magistrates should not arrest individuals for minor Sabbath violations, Chief Justice William Tilghman wrote that a “violation of the Sabbath is a crime which deserves punishment; but when the work done is without noise or disorder, there is nothing in it like an actual breach of the peace.” However, two years later, in Commonwealth v. Wolf (with Chief Justice Tilghman absent), the Pennsylvania high court declined to follow Tilghman’s recommendation and reaffirmed the constructive breach standard. Refusing to distinguish

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between degrees of public disturbance, the Wolf court ruled that, because Sabbath breaches injured Christian society generally, evidence that the conduct actually disturbed the peace was unnecessary.77 In 1844, the North Carolina Supreme Court became the first to reconsider whether courts should require proof of an actual disturbance before a person could be convicted of violating the Sabbath. In State v. Williams, the defendant had been convicted under the 1741 statute of being a “common Sabbath-breaker and profaner of the Lord’s day” by forcing his slaves to work on Sundays. The issue on appeal was whether the defendant could be indicted for directing work that had not been witnessed by neighbors nor disturbed the public peace. The North Carolina court held that he could not. (The court, of course, never addressed the more delicate issue of whether the defendant’s slaves could serve as persons impacted by his Sunday breach.)78 Approaching the issue cautiously, Chief Justice Thomas Ruffin wrote that the defendant could have been fined for a breach without proof of a disturbance; however, a criminal indictment was a different matter. Despite the defendant’s wrongdoing, his conduct could not constitute an indictable offense without some proof that the breach created a public disturbance. Ruffin then placed the issue in broader church-state terms. To allow this defendant to be prosecuted, Ruffin wrote, one had to assume that Christianity was a part of the common law. “The truth is, that [the defendant’s breach] offends us, not so much because it disturbs us in practicing for ourselves the religious duties or enjoying the salutary repose or recreation of that day, as that it is a breach of God’s law.” Rejecting this approach, Ruffin stated that “we cannot believe that such a principle was established at the common law.” Continuing with one of the earlier refutations of the maxim, Ruffin wrote: Although it may be true that the Christian religion is part of the common law, it is not so in the sense that an act contrary to the precepts of our saviour or of Christian morals is necessarily indictable. Those which are merely against God and religion were left to the correction of conscience or the religious authorities of the State.79 Ruffin did not stop with holding that the state must prove that a Sabbath breach caused an actual disturbance or breach of the peace. In remarks that further detracted from the religious basis of the law, Ruffin equated the state’s Sunday law with a disturbing the peace statute: if “the act of the accused in fact disturb[s] others in the performing of their duties of piety, that will be a specific offense, whether committed on Sunday or any other day.” Ruffin’s choice of comparison was significant, for by equating a Sabbath breach to a generic disturbing the peace violation, he effectively stripped the Sunday law of any special

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significance. According to this new standard, the fact that Williams’s breach was generally offensive to Christian norms was insufficient to constitute a crime. “Therefore, however clearly the profanation of Sunday might be against the Christian religion, it is not and could not here be made, merely as a breach of religious duty, an offense.”80 What is significant about Williams is that Ruffin placed his holding in a larger context. Although he gave lip service to the maxim as a historical phenomenon, he implied that giving it any other interpretation would be inconsistent with understandings of religious disestablishment. Disestablishment meant more than the severing of a formal, political relationship as under an assessment system; it also prohibited the legal enforcement of religious norms through Sabbath laws. Christianity might be recognized as the “prevalent religion” in the state, Ruffin wrote, but “it is not and cannot be established by law in any form, not as consisting of any particular doctrines, or imposing any special duties of worship or of worship at particular places or periods.” There “are many offenses against God which are not offenses against the State,” Ruffin wrote. In so ruling, Ruffin subsumed the justifications for Sunday laws under the coverage of disestablishment. In a conflict between the two, notions of disestablishment had to prevail.81 Chief Justice Ruffin’s decision in Williams represents a watershed in the understanding of how Sunday laws reinforced Christian norms. For the first time, a court held that a breach of a religious convention, regardless of how well established it might be in custom and practice, could not constitute a legal violation without some proof that the breach caused an actual disturbance or discernible injury. No longer could courts declare that Sabbath or blasphemy laws were valid civil regulations merely because they promoted respect for religious norms; before conduct could be criminalized, the state had to show that its interest was greater than merely preserving the religious sensibilities of the public at large. Equally significant, while Ruffin did not reject the maxim out of hand, he gutted it of all legal meaning. Williams signaled that, henceforth, legal rationales would be based on secular considerations. Chief Justice Ruffin reaffirmed the secular nature of North Carolina’s Sunday law in the year following Williams, declaring that the state legislature had “[no] authority to prescribe duties in reference to this or other religious tenets to which all the citizens are bound to render obedience[;] merely as the violation of a duty of religion, we cannot punish the profanation of Sunday.”82 Antebellum courts responded slowly to Ruffin’s new nuisance standard for Sabbath violations. The South Carolina Supreme Court, writing in the Benjamin case only two years after Williams, ignored Ruffin’s opinion while affirming the vitality of the maxim. Similarly, in the 1849 case of

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Sellers v. Dugan, a majority of the Ohio Supreme Court upheld that state’s Sabbath law as prohibiting acts deemed to be contrary to the “common and religious observance of the day.”83 One justice dissented, however, on grounds that the Ohio legislature lacked authority to enact a comprehensive Sunday law. Employing an actual nuisance standard similar to that advanced in Williams, Justice William B. Caldwell wrote that the true object of Sunday laws was not “to punish persons for not observing the Sabbath, in a particular way; this would be persecution.” Instead, Sunday laws should be limited to protecting “that portion of the community who observe the day as hallowed to religious exercises, from disturbance and annoyance.” Enforcement of the Sabbath laws, Caldwell insisted, “always has, and always will produce, a pharisaical and hypocritical observance of a religious duty, and creates a spirit of censorious bigotry, and tends powerfully to destroy every religious feeling in the heart.”84 Then, only four years after it had identified a religious purpose for Sabbath laws, the Ohio Supreme Court reversed course. In Bloom v. Richards, the 1853 contract case mentioned above, the Ohio court rejected arguments that it had authority to protect or enforce religious custom through Sunday laws. In the process, the court disavowed that Christianity formed a part of the law in Ohio: “it follows that neither Christianity, nor any other system of religion, is part of the law of the state.” Employing language that covered nuisance situations as well as contract cases, Justice Allen Thurman held that the law prohibiting labor on Sunday “could not stand for a moment as a law of this state, if its sole foundation was the christian duty of keeping that day holy, and its sole motive to enforce the observance of the day.” Instead, Sunday was merely a civil day of rest from labor. “We have no union of church and state,” Thurman asserted, “nor has our government ever been vested with authority to enforce any religious observance, simply because it is religious.” Just so there would be no mistake as to the meaning of the holding, Thurman concluded his decision in Bloom by expressly overruling the majority opinion in Sellers v. Dugan. Significantly, like Chief Justice Ruffin in Williams, Justice Thurman understood a religious justification for a law to be a form of religious establishment. Together, the Williams and Bloom decisions helped to accelerate the process of legal disestablishment in the United States.85 Gradually, courts in other jurisdictions adopted Ruffin’s actual nuisance standard, particularly for situations involving minor or technical Sabbath breaches. In 1853, a Philadelphia Common Pleas Court refused to convict a newspaper hawker of violating the Sunday law in the absence of evidence he had created a public disturbance. The New York Court of Appeals, writing in an 1862 contract case, indicated its leanings toward the nuisance standard by

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declaring that “[a]cts not interfering with the benevolent design of the Sabbath by disturbing and hindering those who, for themselves and [their] families, desire to enjoy and improve it are not prohibited by this statute.”86 As if to convince reticent courts of the merits of the new standard, the North Carolina Supreme Court elaborated on its nuisance rule in 1860, holding that the state had the power to prohibit “noisy labor, calculated to disturb other people,” particularly when it affected public worship: But when it goes further, and, on the ground of forcing all persons to observe the Lord’s day and carefully apply themselves to the duties of religion and piety on that day, prohibits labor which is done in private, and which does not offend public decency or disturb the religious devotion of others, the power is exceeded, and the statute is void for excess.87 A series of cases heard by the Pennsylvania Supreme Court in the nineteenth century illustrates the evolution of the actual nuisance standard in Sabbath law cases. In its 1817 Wolf decision and then again in the 1848 case of Specht v. Commonwealth, the Pennsylvania high court reaffirmed its allegiance to the constructive breach standard. In the latter case, the court had upheld a conviction of a Seventh Day Baptist for hauling manure on Sunday, even though there had been no evidence that his conduct had created a disturbance. Five years later, the court again found evidence of a disturbance unnecessary by speculating that the running of streetcars on Sundays was “more likely to interrupt the exercises of religious meetings, and disturb the peace of neighborhoods, than private conveyances.” These holdings placed Pennsylvania firmly within the constructive breach camp.88 The Pennsylvania Supreme Court’s first step toward adopting a nuisance standard came in 1859 in a second case involving the operation of streetcars on Sundays. In Commonwealth v. Jeandelle, the trial court had sent mixed signals as to how to interpret the Sunday law. At first, the court had grounded the authority for the law squarely on the maxim. Defining the Sabbath as “a day of religious rest and quiet . . . clothed with particular sanctity,” the court declared that the “right to repose and quiet upon the ‘Lord’s day’ rests upon the same basis with the law which declares Christianity to be a part of the common law.” Nonetheless, after affirming the law’s religious purpose, the trial court had held that the streetcar driver had not violated the law simply by operating his vehicle on a Sunday, stating that “the offense consists, if committed, in the noise or disorder actually made.” Absent evidence that the defendant’s vehicle had made a loud noise or created a public disturbance, he could not be guilty of violating the Sunday law.89

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On appeal, the Pennsylvania Supreme Court concurred with the trial court’s interpretation of the law as requiring evidence of an actual disturbance but reversed the ruling based on a different view of the facts. Justice James Thompson agreed that the defendant could not be charged with a breach of the Sabbath (beyond the imposition of a small fine) for a mere “constructive disturbance” of the peace. Relying on language found in Chief Justice Tilghman’s 1815 Eyre opinion, Thompson held that the prosecution had to show that an “actual” breach had occurred—one “occurring so long, or so frequently, and in such a place, as to amount to a public disturbance.” Ever cautious, however, Thompson concluded that the defendant’s conduct had in fact created such a disturbance. Significantly, Thompson did not identify a religious purpose for the law nor comment on the trial court’s reliance on the maxim.90 William Jeandelle’s loss was the law’s gain, as the Pennsylvania Supreme Court had effectively adopted an actual nuisance standard. Yet for the present, the high court was willing to surmise that almost any amount of evidence would support a finding that an actual disturbance had occurred. The extent of the court’s acceptance of the nuisance rule was not clear until the 1867 case of Sparhawk v. Union Pacific Passenger Railway Co. As in several earlier cases, Sparhawk concerned the running of horse-powered streetcars on Sundays, apparently a problem of epidemic proportions in Pennsylvania. Unlike those earlier cases, the plaintiffs here were pew holders in several Philadelphia churches abutting the roadway, who complained that the streetcars disturbed their religious worship. A claim of actual nuisance was alleged.91 Initially, the pew holders obtained an injunction prohibiting the running of the streetcars on Sundays from Pennsylvania Supreme Court justice William Strong, sitting at nisi prius (trial). In drawing Strong, the pew holders could not have found a more sympathetic judge. Soon to be appointed to the U.S. Supreme Court, Strong was a devout Presbyterian who fully subscribed to the notion of America as a Christian nation. Strong would go on to serve as president of a leading pro-Sabbath-observance organization, the National Reform Association, and would eventually resign his seat on the U.S. Supreme Court to work full time for the American Bible Society.92 Strong had little trouble finding that the running of streetcars on Sunday was a “palpable violation of the law.” Accepting the pew holders’ view of the facts, Strong related how the operation of the cars disturbed their religious worship. “[T]he grating of the wheels on the curves, the clatter of the horses’ hoofs in starting, the sound of the signal bell, and the hallooing of those who wish to stop the cars for passage” so annoyed and distracted the plaintiffs, Strong wrote, “they can hardly hear the preacher; they lose some of his words.” As if to seal his point, Strong noted that, in one instance, “a whole prayer was lost!” Based

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on such compelling evidence, Strong found that the pew holders had more than established that the streetcars had disturbed “the enjoyment of their pews, to which they are entitled, and without which the pews are valueless.”93 Even though Strong found that the defendant’s conduct caused a nuisance under the facts, he denied that the law generally required such a showing. Falling back on a constructive breach standard, Strong insisted that the “very purpose” of the Sunday law was to secure “a day of rest for the community, thereby enabling every one to worship God according to the dictates of his conscience, without distraction, and without disturbance, and thus giving a check to vice and immorality.” This purpose rested on the established principle that “Christianity is a part of the common law of this state,” which Strong insisted carried with it “a civil obligation to abstain on the Lord’s day from all worldly labor and business, except [ for] works of necessity and mercy.” Pursuant to this theorem, any breach of the Sabbath was an affront to Christianity: “Every unlawful thing that is distracting, that disturbs such rest, is an interference with this purpose”— and could be punished.94 The streetcar company appealed Strong’s order to the full supreme court. In an opinion that reaffirmed the holding in Jeandelle, a majority reversed Strong’s order, ruling that the injury to the pew holders was too particular to constitute a legal nuisance. Taking the standard one step further, Justice James Thompson held that the law not only required a showing of actual nuisance but also that the nuisance be of the type “such as [would] naturally and necessarily result to all alike who come within [its] influence.” While acknowledging that the streetcars might have disturbed the pew holders’ religious worship, Thompson held that the streetcar company’s conduct had been no different on Sunday than on any other day. Since the only thing that had made this conduct offensive was that it had occurred on the Sabbath, it could not constitute an actionable breach of the law. “Separated from the offense against the day, there is no complaint of injury.” In so holding, the majority opinion firmly established the nuisance standard in Pennsylvania while undercutting Strong’s claim of a religious basis for Sunday laws. Implicit in Thompson’s opinion that the pew holders’ injury was too particular to constitute an offense was the premise that the law’s purpose was not to protect religion but to prevent general public disorder. At least in this instance, Christian norms were not equated with the common good.95 Even though Thompson’s opinion implicitly rejected the authority of the maxim, one justice chose to reply directly to Strong’s claims of Christianity’s incorporation into the law. In a concurrence, Justice John M. Read disputed that Christian-nation language found in cases such as Wolf and Updegraph authorized courts to recognize a religious purpose for Sunday and sumptuary

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laws. The “cardinal error” in those earlier decisions, Read wrote, was that they had treated Sunday “as set apart by divine command.” Rather, the “true basis” of the Sunday laws was “to inculcate a temporary weekly cessation from labor” while not adding “to this requirement any religious obligation.” Justice Strong, having been rebuked by his colleagues, chose not to respond in writing but simply listed his dissent from the holding.96 Taken together, Thompson’s and Read’s opinions served as a strong affirmation of the actual nuisance standard in Pennsylvania. In the span of twenty years, the court had gone from validating prosecutions for constructive breaches of the Sabbath to requiring that prosecutors show an actual disturbance or injury for a breach to be actionable. Previously, nondisturbing acts were presumed to offend Christian sensibilities (and thus the common good) and were subject to sanction; now, acts that actually disturbed Christian worship were seen as too idiosyncratic to justify prosecution. Moreover, in Sparhawk, the court had performed an about-face from earlier holdings that had affirmed the primary function of Sabbath laws as ensuring piety and protecting religious sensibilities.97 Now, the law protected religious practice only if the breach was separately actionable on secular grounds. But most important, Sparhawk also signaled the demise of the maxim and of the affirmative duty of courts to specially protect Protestant Christianity. The Pennsylvania Supreme Court, which had been so instrumental in the development of the maxim in Updegraph, would never again use the concept to justify religiously based legislation. Although lower courts in Pennsylvania and elsewhere would cite the declarations found in Wolf and Updegraph for another thirty years, they would do so in contradiction to Sparhawk.98 The experience in Pennsylvania was repeated in other jurisdictions as courts adopted the rule that a defendant could not be convicted of violating the Sabbath without evidence that his breach created a public disturbance or nuisance. Applying the analysis first established in North Carolina and developed in Ohio and Pennsylvania, courts began reading actual nuisance requirements into the common law and existing statutes. Writing in 1864, the Massachusetts high court held that “[m]any acts of a secular or temporal nature may be done without interfering essentially with the due observance of the Lord’s day, or causing injury to individuals . . . or creating ‘disturbance to well disposed persons.’” The Michigan Supreme Court followed suit by holding that the state’s Sunday law did not apply to “those employments which are noiseless, and harmless in themselves.” Reviewing the trend in other states, the West Virginia Supreme Court of Appeals observed in 1879 that Sabbath breaking was now “frequently classed with nuisances and punished as such.” The religious purpose of the Sunday law, the court declared, was “far from being conceded.”99

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This shift to a secular legal standard undermined the religious rationales supporting Sunday laws. As the Georgia Supreme Court wrote in 1896, to constitute a breach “the act must be such as would be disorderly, and the noise such as would be unnecessary, and calculated to disturb the peace, quiet, and good order of the community on other days of the week as well as on Sunday.” Separating the purpose of the Sunday law from any religious basis, the Georgia court declared, “It does not follow that, because one does an act which shocks the religious feeling of [the community], his conduct is ‘disorderly.’” The “public affront” element, so crucial in the early Sabbath cases, was no longer relevant.100 By the final third of the century, the constructive breach standard was effectively dead, having been replaced by a nuisance standard that treated Sabbath breaches as no different from other public disturbances. Occasionally, a court would buck the trend, resurrecting the constructive breach standard as the rule of decision, which occurred in the South during the late 1880s and early 1890s during an upsurge of prosecutions of seventh-day observers who worked on Sunday (see chapter 10). In New York, courts adhered to the constructive breach standard through 1900 based on earlier precedents rejecting the nuisance standard.101 But these were exceptions to the overall trend. On one level, this change in the law removed a major impediment to commercial activity and transportation on Sundays. But more important, the demise of constructive breaches, which had relied so closely on the maxim, signaled the growing secularization of Sunday laws and the disestablishing trend in the law generally.102 The actual nuisance requirement, so crucial in transforming Sunday laws, was also extended to the blasphemy-related offenses of cursing and profane swearing. Blasphemy prosecutions had declined even before many of the antebellum reform impulses took hold. Expanding notions of free speech and freedom of conscience, coupled with the rise of religious pluralism and the disintegration of Protestant orthodoxy, had demolished whatever consensus had existed as to the definition of blasphemous language. Chief Justice Clayton’s inconsistent holding in State v. Chandler and Justice Morton’s persuasive dissent in Commonwealth v. Kneeland had signaled the demise of blasphemy as a viable offense. Even though judges and scholars would occasionally describe blasphemy as still actionable, after 1840 it was a legal anachronism. The advent of the nuisance standard thus came too late to impact traditional blasphemy prosecutions.103 Profane swearing—the reproaching of the Lord’s name—had always been prosecuted more widely than blasphemy, usually through the imposition of a small fine. Because of its petty nature, the decline of blasphemy had little impact on prosecutions for profane swearing, which continued throughout the century.

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In a few jurisdictions, profane swearing had been viewed as an offense separate from blasphemy and already contained a public disturbance element to be indictable (beyond a fine for a minor utterance). In North Carolina, for example, a statement had to be public, repeated, and create an “annoyance and inconvenience” to identifiable persons to be actionable criminally. The mere profaneness of an utterance was insufficient for a conviction. After finding that a prosecutor had failed to prove that a defendant’s statements had disturbed or offended another person, the North Carolina Supreme Court declared in 1845, “There are many immoral acts and vicious conduct of persons which bring down the indignation of every virtuous man [which are not actionable under the law]; they are left to the correction of the religious and moral influence of society itself.”104 In other states, the two offenses were more closely related, with profane swearing being akin to a lesser-included offense of blasphemy. In these jurisdictions, minor blasphemies were frequently prosecuted as profane swearing such that proof of a nuisance was usually not required for an indictment. With the demise of blasphemy prosecutions and the rise of secular nuisance rationales in other areas of the law, judges in these states had to grapple with whether to impose an actual nuisance requirement on profane swearing.105 One state with a history of conflating the elements of blasphemy and profane swearing was Tennessee, where prosecutors usually charged a hybrid offense of uttering “profane and blasphemous language.” Initially, the Tennessee Supreme Court was hesitant to apply a nuisance standard to charges of profane swearing.106 But in Bell v. the State (1851), the court held that a defendant could not be prosecuted “where the words themselves constitute and are the gist of the offense,” but went on to assume that a nuisance had been shown by the defendant’s particular obscene language. Relying on the maxim as authority for the prosecution, the court wrote, “Regarding christianity as part of the law of the land, [the law] respects and protects its institutions; and assumes likewise to regulate the public morals and decency of the community.” Four years later, the court reaffirmed that profane swearing required a showing that an utterance tended “to disturb and annoy others,” but again was willing to assume the requisite disturbance from the defendant’s language. Referring this time to the Second Commandment, the court wrote that profane swearing “generates a contempt for holy things, tends to the corruption of morals, and the debasement of humanity.” In such matters “the public ha[s] a deep interest, and may well enforce penalties to avert such consequences.” For the time being, the Tennessee court presumed a pernicious effect from the words without any specific evidence that the defendants had created a nuisance. But the court had taken a half-step by holding that profane and blasphemous language was not per se actionable.107

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Having taken the tentative step to require an averment of some type of public nuisance, the Tennessee court eventually gave that requirement meaning. Succumbing fully to the nuisance trend, the court in 1871 held that before a charge could be brought, “profane and blasphemous” statements had to be made “in the presence and hearing of divers good citizens of the State” to their “great scandal and common nuisance.” The court would no longer presume that profane swearing created a public nuisance nor that the maxim authorized such prosecutions. As it reiterated in 1882, an “averment to the common nuisance, or its equivalent, is essential [ for the offense]. All else is comparatively unimportant except the language uttered or its substance, for it is obvious that the utterance could not be a nuisance unless it was in the presence of other persons.” Of greater significance, the Tennessee court no longer saw the need to rely on religious justifications for the offense. The law protected against a civil public disturbance, nothing more.108 Courts in Pennsylvania, with the precedent of Updegraph, were slow to apply a nuisance standard to profane swearing. In 1852, the Pennsylvania Supreme Court upheld a profane swearing conviction without any evidence of a public disturbance, holding that, if the offending language took place in public with the intent “to debauch and corrupt the public morals, the offense is complete.” Fourteen years later, the court affirmed another conviction, this time assuming that a disturbance had occurred by the open and public nature of the statements. With the 1867 Sparhawk case imposing a nuisance requirement on Sunday disturbances, however, an actual disturbance could no longer be presumed from the words. An indictment, the court declared later in reversing a conviction for profane swearing, “must contain an averment of facts sufficient, on its face, to make out the offense charged.” Regardless of how odious or profane the utterance, the court could not presume a public annoyance. Insult to the prevailing religious sensibilities alone was insufficient to constitute an offense.109 By the final third of the century, a majority of jurisdictions was applying the actual nuisance standard to profane swearing. Writing in 1872, the California Supreme Court commented on the development in the law by contrasting profane swearing with the old common-law offense of blasphemy. Unlike the latter crime, which had punished individuals merely for their heretical words, profane swearing was only indictable “when the words uttered were repeated so often and so publicly as to become an annoyance to the public and thus a public nuisance.” The developments also led the Alabama Supreme Court in 1881 to reflect on how the law had been transformed over the years. Referring to the earlier practice, the court noted that profane swearing and blasphemy had been indictable at common law because of their tendency to “corrupt the morals of the community, as to undermine the foundations of Christianity, which is justly

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regarded, in a certain sense, as a part of the common law of the land.” But now, the “sounder view” was that “profanity should take such form, and be uttered under such circumstances as to constitute a public nuisance.” In that case, the Alabama court even refused to presume that a disturbance had been created when a defendant had uttered profanity outside a church as the service was ending. With the adoption of a nuisance standard for blasphemy-related offenses, the original purpose of blasphemy laws—to protect Christianity from disrepute—had undergone a radical transformation. The new focus on preventing public nuisances, which now applied to any offending language, not necessarily heretical language, rendered obsolete any reliance on the maxim.110

Health and Welfare Not all Sunday law issues fit within the framework of behavioral regulations or lent themselves to the application of a nuisance standard. Particularly within the area of business and labor activities, as religious arguments for Sabbath laws were called into question, courts and legislatures began to develop secular rationales for Sunday regulations based on notions of health, welfare, and workers’ rights. By the 1840s, courts began to acknowledge the inherent authority of the state to legislate for the general welfare of society—usually termed “police powers.”111 This authority, along with its health-and-welfare rationales, quickly found a home in the area of Sabbath regulation. In the 1848 case of Specht v. Commonwealth, one of the first cases to espouse a wholly secular rationale for Sunday laws, the Pennsylvania Supreme Court advanced a health-and-welfare rationale by stating that “to the well-being of society, periods of rest are absolutely necessary.” The Ohio Sabbath decisions of the 1850s also identified a similar source of civil authority in describing the laws as “municipal or police regulation[s]” derived “from notions of public policy.” By midcentury, religious arguments for a weekly day of rest were being replaced by secular ones, with courts declaring that it was “important for the physical well-being of society that Sunday be observed as a day of rest from labor.” Abstention from work on Sundays was now advanced as benefiting mankind, not for the purpose of ensuring public piety, church attendance, or respect for Christianity generally.112 Public health-and-welfare rationales quickly developed to justify regulations governing the opening of shops and workers’ hours. California is illustrative of the development of health-and-welfare rationales in this area. California in the late 1850s was a rough and lawless place. As a means of reining in unruly elements, public officials and clergy obtained in April 1858 the passage

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of California’s first Sunday law, An Act to Provide for the Better Observance of the Sabbath. Shortly afterward, a Jewish merchant from Sacramento named Newman was convicted of violating the law and fined $50. Newman refused to pay the fine and for thirty-five days was imprisoned, from whence he petitioned the California Supreme Court for a writ of habeas corpus challenging the law’s constitutionality.113 The supreme court, in a decision written by Chief Justice David S. Terry, granted Newman’s writ and in the process held the new Sunday law to be unconstitutional. Terry quickly got to what he saw as the root of the problem with the Sunday law: “the intention which pervades the whole Act is to enforce, as a religious institution, the observance of a day held sacred by the followers of one faith.” Terry held that this purpose conflicted with the state constitution, which guaranteed “not only complete toleration, but religious liberty in its largest sense—a complete separation between Church and State, and a perfect equality without distinction between all religious sects.” In finding the law’s purpose to be religious, Terry also rejected the state’s arguments that the law was “absolutely necessary for the benefit of [Newman’s] health and the restoration of his powers.” Even if the state legislature had the authority to make such “an incursion into the realms of physiology,” Terry remarked with skepticism, the “truth is, however much it may be disguised, that this day of rest is a purely religious idea.”114 Terry’s opinion, one of the few ever to declare a Sunday law unconstitutional, was joined by Justice Peter H. Burnett, a former governor of the state, who responded to the religious argument by disputing that Christianity was part of the common law in California. “Our constitutional theory regards all religions, as such, equally entitled to protection, and all equally unentitled to any preference.” “[S]o far as the common law conflicts with this provision, it must yield to the Constitution,” Burnett declared. Between them, the two justices had identified church-state separation as a competing paradigm to the maxim, the former principle being incorporated into the state constitution. The requirement of disestablishment, with its ideological complement of separation, forbade the government’s promotion of religion through a Sunday law.115 Only the third justice, Stephen J. Field, voted to uphold the conviction, but on the ground that the law was a valid health-and-welfare regulation. Field asserted that the legislature had the authority to regulate business, manufacturing, and labor as it saw fit, and courts were authorized to inquire only into “the power of the Legislature, not as to the motives which induced the enactment.” In this last statement, Field was likely winking at the legislature’s religious motives; he noted that “Christianity is the prevailing faith of our people” and “is the basis for our civilization.” Thus, Field wrote, it was only natural “that

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[Christianity’s] spirit should infuse itself into and humanize our laws.” Despite offering these personal sentiments, Field anchored his dissent on a secular health-and-welfare rationale, asserting that the Sunday law “treats business matters, not religious duties.”116 Three years following the Newman decision, the California legislature enacted a new Sunday law that quickly made its way back to the supreme court. By 1861, both Terry and Burnett were no longer on the court—the former having resigned after killing Senator David C. Broderick in a duel—and Field was now chief justice. The outcome in Ex parte Andrews reflected the change on the court.117 The opinion in Andrews closely followed Justice Field’s dissent in Newman, upholding the Sunday law as a health-and-welfare regulation. Writing for the court, Justice Joseph G. Baldwin affirmed the “full power” of the legislature to pass laws “regulating the relations, contracts, intercourse and business of the general society,” including the authority “to repress whatever is hurtful to the general good.” By enacting the new Sunday law, the legislature had declared “its sense of public policy . . . that the keeping of the places of business on Sundays is injurious to the public welfare.”118 Responding to the anticipated claim about the law’s religious character, Baldwin declared that the “primary object of the legislation . . . is not the promotion of religion.” Yet, he went on to state that “it can be no objection to laws, that while they are immediately aimed at secular interests, they also promote piety.” Baldwin was attempting to walk a fine line. He claimed that the law did not discriminate “in favor of any particular sect,” though he admitted that the legislature had selected that day of the week “recognized by the large majority of the people . . . as a day consecrated to divine worship.” Still, Baldwin insisted that the legislature could have as easily chosen any other day of the week. While the law reflected the prevailing religious custom, “[t]he operation of the act is secular, just as much as the business on which the act bears is secular; it enjoins nothing that is not secular, and it commands nothing that is religious; it is purely a civil regulation, and spends its whole force upon matters of civil government.”119 Whether Baldwin was successful in convincing critics of the law’s secular function, his opinion committed the court to a health-and-welfare rationale as the only legitimate justification for a Sunday law. After Andrews, California never deviated from the view of Sunday laws as civil regulations designed to advance the health and welfare of the citizenry. In 1881, the supreme court reaffirmed that the Sunday law was “purely a secular, sanitary, or police regulation.” The following year, the court upheld a new law that prohibited a broad range of activities on Sundays, including enterprises such as selling liquor at religious camp meetings and procuring “females under

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seventeen years old to play musical instruments in certain public places.” Relying on the police power rationale developed in Andrews, the court reaffirmed that the legislature was merely “endeavouring to preserve the health and physical well-being of the members of the community.” Neither case raised any religious arguments.120 The application of health-and-welfare rationales to Sunday laws did not occur without dissent. In the last-mentioned case, three justices parted from the majority decision, arguing that the broad scope of the statute conflicted with California’s guarantee of religious equality. Speaking for the dissenters, Justice J. R. Sharpstein argued, “Under our Constitution, the Legislature has no power to enforce the observance of any day as a religious duty.” Sharpstein quoted from Newman and the North Carolina decision of Williams to refute the authority of the maxim. Still, the dissenters did not dispute the legitimacy of health-and-welfare rationales, only that the state legislature had overstepped its authority in this instance.121 The California development of a health-and-welfare rationale was mirrored in other states, especially in the area of labor regulations. In 1860, the Indiana Supreme Court held that a law restricting the working hours of employees (both adults and children) was a “reasonable regulation of labor” designed “to protect the weak from the oppression of the strong.” Advancing a similar rationale, the Texas Supreme Court explained in 1867 that the prohibition against Sunday labor allowed the mind to “recover its wonted elasticity and vigor” and the body to “recuperate and be prepared for more arduous and protracted exertions in manual labor.” Utilizing such rationales, courts generally upheld most Sunday labor and business regulations.122 On first impression, this transition to health-and-welfare rationales appears to be in tension with the moral arguments that Sabbath reform societies advanced for the cessation of Sunday work. However, the reform societies also raised health-and-welfare arguments to appeal to wider audiences. This in turn may have encouraged judicial acceptance of the health-and-welfare rationale. While this strategy may have ensured continued Sabbath enforcement, it unwittingly facilitated the legal transition to secular rationales, a fact the moral reformers would later regret.123 The health-and-welfare argument became so accepted that even activities commonly associated with vice and immorality were subject to the rationale. Saloons and theaters, long the bane of clergy and churchgoers, quickly felt the yoke of health-and-welfare rationales designed to prevent drunkenness, rioting, and general public disturbance.124 In upholding its Sunday law in 1867, the Texas Supreme Court wrote that people would be tempted on their day off by “the presence of the grog-shop vender of ardent spirits and malt liquors”

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and would “fall into the vice of intoxication,” leading to “riots, breaches of the peace, and other outlawry.” Acknowledging that selling liquor on Sunday had long been considered sinful, the court insisted that the prohibition now was merely “a civil regulation” enacted for “the physical well-being of society” and not for the promotion of any religious principle. Applying similar secular analyses, the supreme courts of Pennsylvania (1859), Indiana (1860), Georgia (1871), Minnesota (1875), Louisiana (1879), and California (1881) upheld laws prohibiting the Sunday sale of liquor as “mere police regulation[s].”125 As the Louisiana court noted in a subsequent decision: While it may be that the reason for selecting Sunday as the day on which the liquor traffic is prohibited rests on the universally admitted belief . . . that [Sun]day is the Sabbath of the Lord, . . . yet the regulation might well be supported on reasons having no connection with Sunday as the Sabbath, but only as a day on which, under existing habits of the people, large numbers congregate in towns and pass the day in idleness, tending to lead to disorder.126 With the application of health-and-safety rationales to acts of public immorality, religious justifications were pushed that much further to the margins of judicial decision making. Coupled with nuisance rationales and other scientific advances in the law, the health-and-welfare rationales indicated the growing secularization of the law. Efforts to systematize and refine the law, arising from a desire to make it more scientific and predictable, meant that judges could no longer rely on metaphysical justifications for legal rulings. In order to be predictable and fair, the law had to be “valueless,” relying on objective rules instead of judicial predilections. In an era that valued an ever-efficient and neutral approach to legal decision making, the maxim had little use. For some judges, the substitution of secular rationales for religious ones might simply have been a way to enforce religious conduct. At the same time, however, the rejection of religious rationales indicates that judges were becoming uncomfortable with their authority, if not ability, to identify and enforce religious norms in a religiously diverse society. Most judges saw the lessening of religious disabilities and restrictions as an important progression in the law. As the Ohio Supreme Court wrote in 1898 in rejecting a counsel’s argument that the state’s Sunday law should serve a religious function: “No doubt, many who advocate Sunday observance . . . do so from the persuasion that our Sunday laws are designed as religious observances only, and insist that they should be more rigidly enforced.” But the court held that, regardless of how “desirable this may be from the Christian standpoint, . . . it is not in the power of the legislature to accomplish this by any direct legislation, so long as religious liberty

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is guaranteed, as it is, in our bill of rights.” A Sunday law could not stand, wrote another court, if it “purport[ed] even to rest on any religious doctrine or tenet” or had “pretension to impose any religious doctrine on any one.” These and numerous other judicial statements rejecting religious rationales (rather than simply substituting secular rationales) suggest that a genuine change in attitudes had occurred. Even if a few judges were disingenuous as to their true motivations, the fact that they, too, felt obliged to identify secular rather than religious rationales for sumptuary laws indicates a recognition that religious justifications were no longer acceptable for judicial decision making.127 Acceptance of secular rationales was so complete that it led the Indiana high court to remark that “eminent jurists and courts with practical unanimity agree that Sunday laws can only be upheld as a civil regulation of a sanitary nature.” As the Idaho court concurred in 1907, “There can no longer be any question, if there ever was, that such [Sunday] laws may be supported as regulations of police.”128 But even more significant than the shift to secular rationales was the fact that Sunday laws were no longer viewed as protecting religious sentiments or encouraging public piety. Courts now equated Sunday disturbances with public disturbances on any other day. Similarly, health-andwelfare and nuisance rationales had relieved courts from relying on distracting religious rationales when upholding Sunday regulations. The law had effectively been freed of its obligation to specially protect and promote Christian observances. By the last quarter of the century, the maxim of Christianity being part of the law had effectively been supplanted by secular-based theories. Even though a handful of morally based laws remained on the books, they were now enforced on nuisance or health-and-welfare grounds, if they were enforced at all. The most compelling evidence of the law’s secularization, however, came from the change in attitude toward the law, which was no longer viewed as representing static, eternal principles derived from a higher source. Now, the law was viewed as being dynamic, adaptable, and, most important, amoral. In reaching this point, the law no longer had a role in promoting a Christian society nor in ensuring public piety as New England jurists had insisted some seventy years earlier. And importantly, many of the judges instituting these changes in the law tied the developments to expanding notions of church-state separation. Disestablishment, long in the making but irreversible as a trend, had come to the law.

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PART IV

The School Question

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8 The Rise of Nonsectarianism

[We must resist the] unnatural union of Church and State. —William Oland Bourne, History of the Public School Society of the City of New York (1870) The controversy over Protestant religious instruction in the nation’s public schools and the public funding of religious/parochial schools—known collectively as the “school question” or “school controversy”—was arguably the most important church-state issue of the nineteenth century. The controversy spanned the entire century and extended well into the mid-twentieth century; in fact, one could argue that neither issue has been resolved to this day.1 No other church-state issue of the era attracted greater public attention or engendered more religious conflict, the Mormon controversy notwithstanding. And no other issue so well demonstrated the evolving perspectives on the meaning of disestablishment in the United States. This is because, at its core, the school question was chiefly a cultural dispute rather than a legal one, even though both issues, funding and religious instruction, implicated constitutional principles. Since their beginning, public schools have been the nation’s primary acculturating institution. Public education was established, in large part, to instill democratic and ethical values into the future generations of Americans—to turn children into “republican machines,” in the words of Benjamin Rush. Rush and other early

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proponents believed that a common education was imperative for children “to perform their parts properly in the great machine of the government of the state.” In the still-unfolding republic, public schooling would inculcate skills in self-governance while it reinforced the commonly shared values that informed America’s identity and made it distinct. In the early nineteenth century, when public schools were first being established, people regularly equated republican values with Protestant values.2 In many respects, the story of the school question is a microcosm of the second, gradual disestablishment of the nineteenth century. At the beginning of the century, public education was universally and unapologetically religious in orientation. A century later, public schooling in much of the country was considerably less religious (and more apologetic about its remaining religiosity), though significant exceptions existed. Because public education had been built upon contemporary assumptions about the interrelationship of religion, morality, and educational content, resistance to disestablishment in this area was particularly fierce and enduring. Educators created an informal Protestant establishment and then struggled to disestablish their schools as they became more academically rigorous, professionalized, and religiously pluralistic. In the 1840s, Horace Mann, the influential head of the Massachusetts Board of Education, introduced modifications under which education remained identifiably religious, though less doctrinaire and more focused on instilling universal moral virtues. Had public educators simply built on Mann’s example, public schooling would likely have secularized on its own over time.3 The nation was not static, however, and competing forces bombarded common schooling from all sides. One of the more ironic aspects to this transition is that, in order to preserve a semblance of Bible reading and religious instruction, educators and Protestant leaders turned increasingly to secular justifications for the practices, which had the effect of secularizing the exact religious practices they sought to retain. At the same time, the influx of Catholic immigrant children after the 1830s led many educators to resist further secularization and to cling more fiercely to the Protestant character of their programs, thereby slowing the secularization of public schooling in some locations. The assimilation of both native and immigrant children, a process that many believed necessary to preserve the republic, depended on the ability of schools to transmit moral values, which most educators associated with generic Protestantism. For others, the religious pluralism brought about by Catholic immigration only reinforced the idea that public schools truly had to disestablish in order to fulfill their promise. The battle lines for the second half of the century were among those who sought to retain a religious element to public schooling (for both real and symbolic reasons), those who argued that schools could no

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longer use religion to teach morals, and Catholics who criticized the first alternative as being too Protestant and the second as being “Godless.”4 Following the Civil War, American education evolved from its second phase to a third, from a curriculum that emphasized moral values by teaching “universal” religious principles to one that was increasingly secular with a perfunctory reliance on religion. These developments would be the catalyst for the eventual disestablishment of public education.5 Ironically, many who resisted disestablishment of the schools raised the battle cry of separation of church and state in their efforts. Critics of this episode are correct that “church-state separation” frequently became a facade to perpetuate a system that favored Protestantism over Catholicism. Anti-immigrant and anti-Catholic nativists cloaked themselves in the garb of constitutional principle in order to perpetuate the nation’s Protestant hegemony.6 What these critics fail to appreciate is that many reformers supported nonsectarian education and opposed the funding of parochial schools for legal and policy reasons unrelated to anti-Catholic animus. The same separationist impulses that prevented the funding of parochial schools also led to the gradual abolition of Protestant preferences in public schooling, to the benefit of religious minorities. Although misused, church-state separation was a much larger impulse than a fig leaf to mask anti-Catholicism. The secularization of public schooling would take the remainder of the nineteenth century and extend well into the twentieth. As such, the disestablishment of public education, fueled primarily by the school question, would be incomplete until at least the mid-twentieth century. Yet, the ultimate disestablishment that took place through the Supreme Court’s involvement in the 1940s–1960s would not have happened had it not been for the significant developments that occurred in the nineteenth century.7

The Rise of Nonsectarian Education At the time of the nation’s founding, public schooling was practically nonexistent. A few towns and cities, chiefly in New England and along the Atlantic seaboard, operated “district” schools open to local children whose parents paid a fee for their children’s education. Such schools were not “public” in the modern sense as they frequently represented a hybrid of public and private/ religious involvement with local clergy commonly serving as teachers. In addition, “charity” schools, usually religiously run, existed in a handful of cities, providing basic education to poorer children. Other education took place through private tutors or in a handful of private and church-run academies. As a result, early schooling was generally limited to those with financial

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resources and opportunity; no schooling was entirely free, tax-supported, or compulsory.8 Also, the content of early schooling was uniformly religious. One of the stated purposes of early education was to instruct youth “in the Principles of the Christian religion,” and most schooling available before the Revolution was tied to the locally dominant Protestant church. The overseers of one Connecticut town directed its teachers to “select such lessons from the Bible for those who read therein, as they can best understand [in order to] explain and inculcate such truths in the course of reading.” In addition to learning “to honour and obey their parents,” children were taught “to revere the ministers of the gospel . . . [and] the sabbath” and to remember “their dependence on God, . . . their accountability to him, . . . their mortality, and . . . the importance of religion both as a preparation for death, and the only means of true peace, comfort, and usefulness in this world.” These goals were reinforced by textbooks such as The New England Primer, which utilized religion to teach every aspect of the curriculum, from teaching the alphabet by naming biblical figures (“A = In Adam’s fall, we sinned all”), to teaching mathematics through counting the books of the Bible, to employing religious rhymes, prayers, and catechisms for reading. In the nineteenth century, the Primer would give way to the McGuffey Reader and related texts, which were less dependent on religious catechisms but no less imbued with Protestant doctrines and values.9 Following the Revolution, early educational reformers such as Benjamin Franklin, Thomas Jefferson, Benjamin Rush, and Noah Webster began agitating for free, universal, public schooling. These founders believed that education was “essential to the continuance of republican governments,” as Webster wrote in 1790; it “gives every citizen an opportunity of acquiring knowledge and fitting himself for places of trust.” A universal common education, under the control of public authorities, would encourage knowledge, break down class differences, and train children in the essential skills needed to participate in the still-unfolding democratic society.10 At the same time, these reformers questioned the central role of religion in the pedagogical process. In his 1779 plan for establishing public elementary schools in Virginia, Jefferson proposed that, “instead of putting the Bible and Testament in the hands of children at an age when their judgments are not sufficiently matured for religious inquiries, their minds may here be stored with the most useful facts from Grecian, Roman, European and American History.” Webster, writing a decade later, also criticized the use of religious texts and the teaching of sectarian doctrine, arguing that the repetitive reading of scripture led pupils to disrespect its precepts and inhibited their ability to think critically. Webster encouraged a reliance on secular subjects such as geography, economics, law,

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and government for inculcating virtue and moral character, though he supported the reading of select passages of the Bible as well.11 The idea of a “nonsectarian” curriculum came from Maryland clergyman Samuel Knox who in 1799 proposed a comprehensive program of secular study that avoided all religious instruction other than teaching “a reverence of the Deity, a sense of His government of the world, and a regard for morals.” Knox offered his system of liberal education as the only means of “preserving that liberty of conscience in religious matters which various denominations of Christians in these states justly claim.” Despite this goal of uncoupling education from religious instruction, most early reformers still viewed religion as indispensable for public education. Knox did not object to a “short and suitable” nondenominational prayer each day addressed “to the great source of all knowledge,” and Webster’s American Spelling Book taught reading and writing through the use of a nondenominational Protestant catechism.12 With the foundation laid by Knox and others, nonsectarian education became the prevailing model for American schooling during the nineteenth century. As a concept and in practice, however, nonsectarianism was neither uniform nor static; there was no one model of nonsectarian education, despite the commanding influence of reformers such as Horace Mann. Local control over education and varying degrees of religious homogeneity ensured that the patterns differed from one town to another.13 The first attempt at a comprehensive nonsectarian educational program came with the founding of the Free School Society of New York City in 1805. The society came about through the efforts of wealthy Quakers and business leaders who were concerned about the large number of poor children in the city who were not receiving any formal education. At the time, Presbyterian, Episcopalian, Lutheran, Quaker, and Dutch Reformed groups operated a handful of charity schools, all receiving limited public support under a 1795 New York law. From its inception, the Society distinguished its charity schools from the denominational schools by stressing the nonsectarian character of its curriculum which, its publications asserted, made its schools appropriate for children of all religious faiths. In addition to instruction in the “common rudiments of learning,” the Society described its curriculum as teaching only “the fundamental principles of the Christian religion, free from all sectarian bias, and also those general and special articles of the moral code, upon which the good order and welfare of society are based.” The Society asserted that its nonsectarian curriculum allowed children of all faiths to learn without the hobbling effects of sectarianism. Like the emerging common schools in other eastern cities, the Society modeled its program after the popular British Lancasterian system, which emphasized a nonsectarian moral curriculum that transcended denominational boundaries.14

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The notion that schooling should be free, open to all children, and nonsectarian in character was groundbreaking for the time. But “nonsectarian” did not mean nonreligious, either in intention or in practice. At its core, nonsectarianism relied on Protestant theological assumptions about the perspicuity of the great moral truths contained in the Bible. From its beginning, the Society promoted its schools as instilling common Protestant values, declaring that one of its “primary object[s], without observing the particular forms of any religious society, [will be] to inculcate the sublime truths of religion and morality contained in the Holy Scriptures.” Daily readings from the King James Bible were instituted at its first school, which were followed with daily prayer, the reciting of the Lord’s Prayer, and the singing of Protestant hymns. For a time, the Society also used a catechism, said “to be free from sectarian principles,” that relied on passages from Psalms and Proverbs, though the exercises retained a distinctly Calvinist tone. Society officials thus walked a fine line; while eschewing instruction in the particular tenets and beliefs of varying denominations, they proudly declared the Christian character of the Society’s schools: Special care must be taken to avoid any instruction of a sectarian character; but the teachers shall embrace every opportunity of inculcating the general truths of Christianity, and the primary importance of practical religious and moral duty, as founded on the precepts of the Holy Scriptures.15 Such aspects of the “nonsectarian” curriculum—Bible readings, Calvinistleaning catechisms, and texts such as the McGuffey Reader—seem quite sectarian by modern standards (as they did at the time to many Catholics and Jews); however, the Society’s nonsectarian program should be viewed within the context of the early nineteenth century when the alternative model was a denominational school with a curriculum that revolved around sectarian instruction. At this early stage, no one urged an education program bereft of religious training. A liberal curriculum complemented by instruction in commonly shared religious tenets represented a break from the status quo.16 Also at this stage, nonsectarianism was not used as a militant juxtaposition to Catholicism; in the 1810s and 1820s, New York City’s Catholic population was relatively small. Rather, the Free School Society’s nonsectarian program was designed to attract children excluded from the city’s Presbyterian, Episcopalian, Methodist, and Dutch Reformed charity schools. The Protestant complexion of the Free School Society thus reflected a belief that schools could teach commonly shared religious beliefs without reverting to sectarianism (i.e., denominationalism). The Protestantism was inclusive, not exclusive, except to the extent that it excluded those sectarian differences that separated the various Protestant bodies from each other.17

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For the first seventeen years of its existence, the Free School Society competed with the denominational charity schools for a share of the state’s public school fund, administered locally by the New York Common Council. Due to the prominence of its board and benefactors—Mayor (later, Governor) DeWitt Clinton, for one—the Free School Society increasingly received the lion’s share of tuition and building funds. That favored position was challenged in 1822 by Bethel Baptist Church, which established a charity school in its church and secured a state grant from surplus school funds for construction of a school building. The Society viewed the grant as a threat to the nonsectarian model and its economic well-being; as a result, the Society vigorously urged repeal of the grant in memorials to the state legislature. In addition to touting the superiority of its nonsectarian program, which was available to children of all faiths and backgrounds, the Society claimed that the funding of sectarian schools violated notions of separation of church and state. Here, for the first time, the Society articulated several arguments that would serve as the basis for an emerging no-funding principle: the grant “impose[d] a direct tax on our citizens for the support of religion” in violation of rights of conscience; the funding of religious schools would cause competition and rivalry among faiths; the school fund was “purely of a civil character”; and “the proposition that such a fund should never go into the hands of an ecclesiastical body or religious society, is presumed to be incontrovertible upon any political principle approved or established in this country . . . that church and state shall not be united.”18 After considering the Society’s memorials and those of several churches, the legislative Committee on Colleges, Academies and Common Schools in 1824 recommended that the legislature discontinue funding for religious charity schools, opining “whether it is not a violation of a fundamental principle . . . to allow the funds of the State, raised by a tax on the citizens, designed for civil purposes, to be subject to the control of any religious corporation.” The legislature, opting for the easier course, authorized the New York City Common Council to make all future allotments of the school fund. The following year, the Common Council voted to end the funding of religious charity schools.19 With this episode, the funding of religious education became identified as a church-state issue. At this early stage, the board’s commitment to constitutional principles may be questioned; the Society raised the church-state argument as a secondary line of attack on the Bethel Baptist Church petition. Still, the position of the Society and Council was consistent with the Jeffersonian principles of the Republican Party, which controlled state and city politics. Diane Ravitch has also noted that the nascent Workingmen’s Party, led by the skeptics Robert Dale Owen, George Evans, and Frances Wright, influenced attitudes toward public schooling during the late 1820s; in particular, they

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emphasized that education should be more egalitarian and less religiously doctrinaire.20 What is additionally significant about this episode is that the notion that funding sectarian schools violated constitutional principles arose within the context of a request made by a Protestant school. As the Society asserted in one of its resolutions, the funding of Bethel Baptist Church’s school “promot[ed] . . . private and sectarian interests.” While it is possible that some Society officials were looking ahead to the establishment of Catholic parochial schools when they were crafting their arguments, nothing in the memorials or reports indicates such an awareness or apprehension. The first significant wave of Irish Catholic immigration was still a decade off, and it was not until the Second Provincial Council in 1833 that the American Catholic Church recommended the creation of parochial schools. Due to the contemporary acceptability of antiCatholic attitudes, it is doubtful that early supporters of nonsectarianism would have felt constrained if such motives had informed their decision making. According to popular understandings of the time, a sectarian school was any religious school in which particular doctrines were taught. The Protestant denominational schools were sectarian. The emerging idea that public funds should not pay for religious education arose within this context.21 Six years following the Common Council’s decision to defund all denominational schools, the Roman Catholic Orphan Asylum and the Methodist Charity School petitioned for a share of the school fund to support their respective programs. Again, the Free School Society, recently incorporated by the city as the Public School Society, opposed the requested distributions on church-state grounds. Raising the same objections as before, the Society also made what can best be described as an early argument about the “pervasively sectarian” character of the schools, noting that “one of the objects aimed at in all such schools is to inculcate the particular doctrines and opinions of the sect having the management of them.” In its characterization of sectarian schools, the Society did not distinguish between the Catholic and Methodist programs.22 The council’s law committee concurred with the society’s arguments in its report: “to raise a fund by taxation, for the support of a particular sect, or every sect of Christians, . . . would unhesitatingly be declared an infringement of the Constitution, and a violation of our chartered rights”: Your committee cannot, however, perceive any marked difference in principle, whether a fund be raised for the support of a particular church, or whether it be raised for the support of a school in which the doctrines of that church are taught as a part of the system of education.

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If all sectarian schools be admitted to the receipt of a portion of a fund sacredly appropriated to the support of common schools, it will give rise to a religious and anti-religious party, which will call into active exercise the passions and prejudices of men. A fierce and uncompromising hostility will ensue, which will pave the way for the predominance of religion in political contests. The unnatural union of Church and State will then be easily accomplished—a union destructive of human happiness and subversive of civil liberty.23 Despite the committee’s warning, the Common Council approved payment to the Catholic Orphan Asylum on the apparent theory that the funds chiefly supported the care of the orphans, not their education. However, the council denied the request of the Methodist Charity School, reaffirming its 1825 decision that public funds could not pay for sectarian education. The episode indicates that the parties viewed the notion of sectarian education and the accompanying bar on its funding in generic terms, applying to all religious schools. In this instance, because the Catholic Orphan Asylum was providing primarily a charitable service rather than sectarian education, it was eligible for public support, much to the chagrin of the Methodist parochial school.24 So long as most students came from Protestant backgrounds, the Free School Society’s program of nonsectarian education worked smoothly. By the mid-1830s, however, an increasing number of new students enrolling in the nation’s fledgling common schools were children of Irish Catholic immigrants, soon to be followed by children of German and Italian Catholics. The Protestant-oriented instruction in the public schools was quickly called into question. Catholic parents and church officials objected to the schools’ religious exercises and texts that conflicted with the Catholic faith. Readers, spellers, and geography books commonly praised the virtues and accomplishments of Protestantism while they ridiculed those of Catholicism, which was depicted as a false, superstitious, and corrupt religion and inimical to republican civilization. As early as the First Provincial Council in October 1829, Catholic bishops decried the numerous “misrepresentations of the tenets, the principles and the practices of our church” that occurred in the public schools. Not only were readings of the King James Bible accompanied by Protestant instruction, one could “scarcely find a book in which some one or more of our institutions or practices is not exhibited far otherwise than it really is, and greatly to our disadvantage; the entire system of education is thus tinged throughout its whole course; and history itself has been distorted to our serious injury.” Protestant leaders and educators instinctively interpreted the Catholic criticisms as attacks on the Bible and moral education. Protestants could not comprehend that mere Bible

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reading, based on Protestant notions of the perspicuity of scripture, could be offensive to Catholics. But as the Catholic Telegraph responded in 1837, Catholics believed that “the Scripture must . . . be received, so as to be reconciled with the existence of a supreme authority, in matters of faith, existing in the Church.”25 Responding to pressure, a few common schools purged their textbooks of offending passages, halted Protestant catechisms, and instituted rules that the Bible was to be read without note or comment. In one instance, the Cincinnati Common School Council solicited input from Bishop John Purcell in removing anti-Catholic references from school materials. Following the changes, the Cincinnati Catholic Telegraph wrote that the curriculum was “still far from being . . . without any sectarian bias [as] we should wish [it] to be,” but “half a loaf is better than no bread.” With such accommodations, school officials defended the virtues of nonsectarianism which, they insisted, “wisely forbid[s] introduction into these schools of any such religious instruction as shall favor the peculiar views of any sect.” But this emphasis on nonsectarianism also forced school officials to disclaim any religious purposes for the exercises. Having made so much of the nonsectarian character of the curriculum, future compromise was much more difficult.26 Conflict over nonsectarian instruction came to a head in New York City during the spring of 1840 after Governor William H. Seward proposed to the state legislature that schools be established in the city so that children “may be instructed by teachers speaking the same language with themselves and professing the same faith.” Taking Seward’s message as an invitation to share in the public school fund, the Catholic leadership quickly filed a petition with the city’s Common Council requesting that a portion of the school moneys be allocated for their parochial schools. Acting under pressure from the School Society and Protestant churches, which insisted that only nonsectarian education should receive public funding, the Council rejected the Catholic petition in January 1841. Catholic bishop John Hughes then sought recourse from the state legislature, but even with the support of Governor Seward and state school superintendent John Spencer, the church’s efforts were for naught. Rather than extending funding to parochial schools, the New York legislature enacted a law in 1842 that prohibited the granting of public funds to any school where “religious sectarian doctrine or tenet shall be taught, inculcated, or practiced.” The legislature amended the law in 1843 to prohibit public funds from going to schools “in which any book or books containing sectarian compositions shall be used,” thereby inserting into public policy the notion of nonsectarian education. Under the same legislation, the body determined that Bible reading, even without note or comment, did not fit within the new prohibition on sectarian education.27

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In 1851, the New York Supreme Court addressed both aspects of the 1842– 1843 laws in People ex rel. Roman Catholic Orphan Asylum v. Board of Education. Relying on an 1848 law that allowed private orphanages to be reimbursed for the care of their wards, the Roman Catholic Asylum of Brooklyn had requested a proportional share of the common school fund from the Brooklyn school board to pay for its educational expenses. On appeal, the supreme court held that the 1848 law’s reimbursement provision was never intended to allow religious asylums to participate in the common school fund. Pointing to the 1842 law, the court held that asylums run by religious organizations were analogous to parochial schools and, as such, were not “common schools” eligible to receive moneys from the school fund. Common schools, the court wrote, were “not confined to a class, but are open to all. . . . They are bound to instruct all the children . . . without regard to their social relations, their station in life or their religious faith.” Most significant, the court embraced the concept of nonsectarianism, ruling that publicly funded schools must be “kept free from every thing savoring of sectarian influence or control.” If the purpose of a school was to furnish instruction “of a partial or sectarian character, the state ought not, and cannot constitutionally, contribute to such a purpose.” By distinguishing the asylum’s education program from that of the common schools, the court implicitly validated the nonsectarianism promoted by the Society’s schools. Protestant nonsectarianism had received its first legal sanction and now possessed a presumption of validity.28 The New York model of nonsectarian education was replicated in other places along the eastern seaboard, most notably in Massachusetts, where in 1827 the legislature made it unlawful to teach the doctrines of particular sects in the state’s common schools, effectively ending public funding of religious schools. As in New York, this occurred before a significant rise in Irish Catholic immigration to Boston. Assimilating immigrant children “was eventually to become a goal of the common school movement,” Professor Noah Feldman has written, “but it was not yet a major goal when non-sectarianism developed as a solution to the problem of teaching morality in the common schools.”29 In 1836, the newly created Massachusetts State Board of Education appointed Horace Mann as its secretary, a post he held for twelve years. In that capacity, Mann became the nation’s chief spokesperson for nonsectarian education, leading it into its second phase. Like other education reformers, Mann advocated nonsectarian education as a solution for attracting children of all faiths and backgrounds while still allowing schools to teach moral values, which all people believed must be grounded in religious belief. But Mann believed that many nonsectarian programs were too doctrinaire. Schools should be “debarred by law from inculcating the particular and distinctive doctrines of

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any one religious denomination,” he wrote; they should not teach that any one faith represented “the whole of religion, or all that is essential to religion or salvation.” The “diversity of religious doctrines, prevalent in our country, would render it difficult to inculcate any religious truths.” Still, Mann had an unfailing belief, based on his own Unitarian faith, that universal moral truths could be distilled from the Bible and taught to children of all faiths: [A nonsectarian system] earnestly inculcates all Christian morals; it founds its morals on the basis of religion; it welcomes the religion of the Bible; and, in receiving the Bible, it allows it to do what it is allowed to do in no other system,—to speak for itself. But here it stops, not because it claims to have compassed all truth, but because it disclaims to act as an umpire between hostile religious opinions.30 Yet, while Mann’s system of unmediated Bible reading eschewed religious doctrine, it retained a goal of instilling religious devotion: the goal was “to make the perfect example of Jesus Christ lovely in [the child’s] eyes”: In every course of studies, all the practical and perceptive parts of the Gospel should have been sacredly included; and all dogmatical theology and sectarianism sacredly excluded. In no school should the Bible have been opened to reveal the sword of the polemic, but to unloose the dove of peace.31 Mann’s assumptions about the ability to identify and transmit universal religious values can be viewed as naive; yet, he and other reformers were sincere in their beliefs. Even though those universal values had a distinctly Protestant hue: [Reformers] like Mann sincerely believed that their non-sectarianism was capacious enough to include Catholics, who were Christians like themselves. . . . Common schools should do all they could to make themselves acceptable to Catholics; in return, Catholics ought to participate in the venture of common schools rather than form schools of their own. Mann’s advocacy of nonsectarianism was thus not based on animus against Catholics, Jews, or evangelical sects. Rather, Mann’s motivations were spurred by the intra-Protestant conflicts that had recently led to disestablishment in Massachusetts and were still festering. Mann sought to remove the divisive effect of denominationalism and doctrinalism, which he viewed as counterproductive to the education of children.32 Despite (or because of) its religiosity, Mann’s modification of nonsectarianism was controversial. Religious historian Sidney Mead has commented,

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“Mann’s brand seemed to many evangelical Protestants to be suspiciously ‘Unitarian,’ and at best what passed as ‘nonsectarian’ religious teaching seemed to many Unitarians, Roman Catholics, and others to be evangelical Protestantism.” Mann was attacked from all sides, including evangelicals, Catholics, and secularists. Evangelicals assailed the Massachusetts schools as “Godless,” while Catholic bishop Hughes charged that the Mann model amounted to “the sectarianism of infidelity.”33 Mann responded to these attacks in a series of letters and in his 1844 and 1848 Annual Reports by emphasizing the religious nature of his curriculum: That our Public Schools are not Theological Seminaries, is admitted. That they are debarred by law from inculcating the peculiar and distinctive doctrines of any one religious denomination . . . and that they are also prohibited from ever teaching that what they do teach, is the whole religion, or all that is essential to religion or salvation, is equally certain. But . . . if the Bible makes known those truths, which, according to the faith of Christians, are able to make men wise unto salvation; and if this Bible is in the schools, how can it be said that Christianity is excluded from the schools; or how can it be said that the school system, which adopts and uses the Bible, is an anti-Christian, or an un-Christian [one?]34 Mann argued that nonsectarianism complemented religion so well that it actually increased religious devotion among students, and he answered conservative critics by pointing to his success in reinstating the Bible in Massachusetts classrooms during his twelve-year tenure.35 At the same time, Mann saw his system as the only means to preserve universal public education, to free it from religious competition and strife, and to place it on a secure financial footing. Requiring instruction in specific Christian doctrines such as salvation would require school officials to choose among creeds, Mann insisted: “Majorities will change in the same place. One sect may have the ascendency today; another tomorrow. This year there will be three Persons in the Godhead; next year, one.” The introduction of sectarian books, doctrines, or teachings “would prove the overthrow of the schools.”36 Mann also believed that nonsectarian education was consistent with, if not required by, concepts of disestablishment. He recognized the tension that existed within his nonsectarian program, but he was seeking to walk a fine line between Catholic complaints that his system was too religious and evangelical complaints of the opposite. At the same time that he admitted the religious nature of his system, he argued that if people were taxed to support the schools as “religious institutions . . . it would satisfy, at once, the largest definition of a

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Religious Establishment.” For this reason, public schools could not be more religious, lest they violate the religious conscience of dissenters, including Catholics. But Mann also insisted that people were not taxed to support public schools as “special religious institutions” but for the purpose of “developing and training those powers and faculties of a child.” Mann acknowledged the conflict but saw no other solution for public education. Mann’s reasoning might have been faulty, and he likely failed to convince critics on either side. Still, he and other reformers set out the argument that a more religious education system would be contrary to notions of church-state separation. In so doing, they expanded the understanding of disestablishment.37 Mann’s general argument for nonsectarian education came to be more widely embraced than his actual model. With its emphasis on moral instruction based on the Bible and shared religious principles, his system of unmediated Bible reading attracted an increasing number of Protestant converts. But while Mann acknowledged a vague religious rationale for his curriculum, evangelicals often kept religious instruction as a primary goal of the newer version of nonsectarianism. The Reverend George Burgess wrote in the 1856 American Journal of Education that education “must be religious, and must include religious instruction in all necessary knowledge of the truths of divine revelation.” Some evangelicals also thought that consensus on doctrine could be achieved at a more particular level, although they would have resisted calling it “doctrine.” Religious “truths” were not “doctrine,” Burgess insisted. Public schools should be able to “inculcate the whole moral code of the Gospel . . . [to] counteract every influence of infidelity.” And in more religiously homogeneous communities, they could “affix a more decidedly religious character to the school duties of each day, by the observance of daily prayers . . . [and] introduce the Bible, and promote, by daily reading, the familiar knowledge of its contents, not as if it were a mere reading book, though the best, but as the generally acknowledged word of God.” Evangelical educators like D. Bethune Duffield thus believed that instruction in more specific tenets “would not interfere with any form of religious sectarianism or denominational opinion. . . . [A]ll who are Christian profess to adopt these great cardinal principles and precepts as the rule of their lives, no matter by what name they are known.”38 Belief that a consensus on doctrine was achievable necessitated a more limited view of disestablishment than Mann advanced. Here, the Christiannation maxim was helpful. The Constitution implicitly “recognize[s] the Christian religion as part of the law of the land,” Duffield remarked, and “it says nothing about a prohibition of any form of religious or sectarian opinions, but guarantees this right to all.” What the Constitution prohibited was “simply a church establishment of state religion, which is a very different

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thing from religion itself—the one being a sectarian form of religious opinion, the other the great cardinal principles of Christianity, as embraced by all sects and denominations.” Sectarianism was thus equivalent to an establishment, while nonsectarianism, e.g., universal Protestantism, was consistent with disestablishment. While this schema in the abstract sounded similar to Mann’s view of disestablishment, what counted as “nonsectarianism” made all of the difference.39 In the end, Mann offered a model that readily lent itself to adaptation. That nonsectarianism often legitimated distinctly Protestant activities led most evangelicals to support nonsectarian education in the public schools. As they had done with voluntary societies, evangelicals were willing to put aside their sectarian differences for the greater good. The loss of doctrinal purity was more than made up by the certainty that core Protestant principles would be taught in the schools. Protestants might disagree on how much Christianity was appropriate in the common schools, but prayer and Bible reading fit within practically everyone’s definition of nonsectarianism. By midcentury, leading clergy, including Henry Ward Beecher of the Plymouth Congregational Church in Brooklyn and Joseph P. Thompson of the Broadway Tabernacle Church, and secular newspapers, such as Harper’s Magazine, the New York Tribune, and the Nation, all embraced the concept of nonsectarianism for the nation’s public schools. That nonsectarian education encompassed a variety of religious practices, however, opened it to charges that it still promoted Protestantism.40 At the same time, Protestants recognized that they had to deemphasize the religious purpose for the exercises, if not their character. Under this refined notion of nonsectarianism, the goal was to further morality, civility, and respect for authority, not to advance Protestantism. This set up an internal dilemma within the minds of Protestant leaders and within the ranks of common school supporters. Increasingly, religious and sectarian texts and catechisms were abandoned and Bible readings directed to be without note or comment in order to accommodate more children.41 For more conservative evangelicals, this made the exercises seem to be pointless as a religious endeavor. Others argued that any exposure to the truths of the Bible produced benefits, though they acknowledged the incongruity of using the Bible to teach morals but being unable to comment on its substance. Still others advocated using the Bible as a textbook, to be read for its literary, historical, and, again, moral value. Equating the Bible with secular literary texts, however, offended conservative Protestants and invited questions as to the need for using the Bible at all. Thus, throughout the midcentury, public school officials vacillated between emphasizing the religious (i.e., nonsectarian) and the nonreligious (i.e., nonsectarian) nature of the curriculum. Increasingly, the desire to hold on to the

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practices in light of Catholic complaints necessitated minimizing the devotional aspects of Bible reading, which only accelerated the secularization of nonsectarian education.42

The Nativist Defense of Nonsectarianism Nonsectarian education, with its reliance on Protestant-oriented exercises and its goal of assimilating native and immigrant children into Protestant/republican society, has been the subject of much criticism. Fueling that criticism is the fact that many of the strongest advocates for nonsectarianism were Protestant nativists who seized upon the school question in their crusade against Catholic immigration. “The [common] school movement and nativism were not only contemporaneous,” Lloyd Jorgenson writes, “they were . . . inextricably bound up with one another.” Although efforts to tarnish nonsectarianism and churchstate separation with nativism have been overplayed, there is no question that anti-Catholic nativism was a factor in the development of public schooling in the United States.43 By the early nineteenth century, a Protestant ethos had not merely dominated America for 200 years, it had been, for all practical purposes, America’s sole religious expression. For the first 50 years of the nation’s existence, the number of Catholics was relatively small, accounting for less than 50,000 adherents in 1800 or approximately 1 percent of the population. Beginning in the mid-1830s, waves of Catholic immigrants, many of them poor and unskilled, began arriving on America’s shores. Spurred on by famine, recession, and unemployment in Ireland and on the Continent, penniless immigrants quickly swelled the poorer areas of New York City and similar sections in Boston, Philadelphia, and Baltimore. Whereas approximately 50,000 Catholics immigrated to America during the 1820s, in the subsequent 10-year span, almost 250,000 Catholics arrived at America’s ports. While not all immigrants during this period were either Irish or Catholic, Irish Catholics represented the largest and most visible class of new citizens and the most despised.44 Most Protestants, including the nation’s early leaders, shared a long-standing antipathy toward Catholicism and the Roman Catholic Church. In general, such attitudes were subdued. However, the Irish (and later German and Italian) Catholic immigration of the 1830s and 1840s awakened a more virulent form of prejudice. Social critic George Templeton Strong referred to the mass of poor and uneducated immigrants as “the very scum and dregs of human nature.” A “dirty Irishman is bad enough,” Strong wrote, “but he’s nothing comparable to a nasty French or Italian loafer.” These foreigners, with their strange languages,

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different customs, and unusual religious practices, stood out in the Englishspeaking culture with its Protestant values and traditions. Aside from concerns of ethnicity, class, and culture, the primary threat posed by the new immigrants came from their overwhelming allegiance to Catholicism. Because most foreigners were “too ignorant to act at all for themselves,” inventor and nativist Samuel F. B. Morse insisted, they “expect to be guided wholly by others” in political matters. “These others are of course their priests.”45 More was at stake, however, than the mere renewal of the European rivalry between the two branches of western Christianity. In comparing Protestantism to Catholicism, native-born Americans equated the former with republican ideals such as freedom of conscience and the latter with autocracy and intolerance. Many Protestants believed that Catholic immigrants were unable to function in a democratic system. The great body of foreigners, wrote Samuel Morse in 1835, “are not fitted to act with judgment in the political affairs of their new country, like native citizens educated from their infancy in the principles and habits of our institutions.” George Templeton Strong concurred, writing that the naturalization of the “[w]retched, filthy, bestial-looking Italians and Irish” was enough “to turn a man’s stomach—to make a man adjure republicanism forever.” To Protestant nativists, the threat posed to American democracy from immigration was part of a much greater conspiracy directed from Rome and the Catholic capitals of Europe. Many believed that autocratic Catholic rulers in Austria and the German states were using immigration to rid their nations of poor and radical elements while appeasing the papacy’s appetite for expanding its sphere of influence. There was “good reason for believing that the despots of Europe are attempting, by the spread of Popery in this country, to subvert our free institutions,” Morse warned. But even more alarming was “the remarkable coincidence of the tenets of Popery with the principles of despotic government.” “Popery is opposed in its very nature to Democratic Republicanism; and it is therefore, as a political system, as well as religious, opposed to civil and religious liberty, and consequently to our form of government,” Morse asserted.46 Not all Americans who became alarmed at Catholic immigration were necessarily anti-Catholic in outlook. Many people held genuine doubts about the nation’s ability to absorb a large number of people with no experience in self-governing and to assimilate them into a republican society. Also, much opposition to immigration was based on issues of class and ethnicity more than anti-Catholicism. Native-born Americans, many coming from British stock, shared their English cousins’ prejudice and antipathy for the Irish generally. Michael Feldberg has noted that modern historians have generally criticized a “narrowly religious interpretation of nativism.”47 And finally, not all anti-Catholicism was based on irrational bigotry. By midcentury, Catholic

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leaders were quite vocal in their disdain for public education—“let the public schools go to . . . the devil,” Bishop Hughes’s Freeman’s Journal declared— while the pope issued encyclicals condemning republican government, separation of church and state, and rights of religious conscience. Such instances only compounded the widespread view that Catholicism was inimical to U.S. democracy and the perpetuation of America as a Protestant republic.48 Protestant nativists and Catholic immigrants quickly came to blows over the school question. Attempts by urban school boards to accommodate Catholics by modifying the Bible readings or exempting immigrant children from the Protestant exercises were met with criticism, resistance, and even violence. Initially open to such compromises, Catholic leaders increasingly rejected such proposals as transparent efforts to retain the Protestant complexion of the schools. School officials and Protestant leaders in turn bristled at Catholic claims that the King James Bible was “sectarian.” Each side often fanned the other’s fires. In 1840, the nativist New York Observer quoted from the Catholic Register where the latter had condemned the King James Bible as “imperfect and corrupt” while it asserted that parts of the Catholic Bible should be kept from young children, particularly without the interpretive guidance of a priest. “What better evidence than the above can be given,” exclaimed the Observer, “that this church seeks to shut out the light of divine revelation from the minds of its members? They are afraid, not only to have the Protestant Bible read by their children, but there are some portions not proper to be read by children even from their own version!”49 The publicized burning of King James Bibles by priests in upstate New York in October 1842—they were acting in response to distributions in Catholic communities by Protestant Bible societies—only confirmed suspicions that Catholics were against the Bible and even Christianity itself. For many educators, Protestant leaders, and nativists, the Catholic intransigence over the Bible reading issue was simply a guise to obtain a share of the school fund for their parochial schools. “These efforts of the popish priesthood, to get control over public monies, should be met and firmly resisted by every man who is opposed to a union of church and state,” the Observer warned in 1840.50 The controversy over Bible reading and parochial school funding turned violent in several cities in the 1830s and 1840s. In 1834, nativists burned a Catholic Ursuline convent and school outside of Boston.51 The most significant outbreak of violence between nativists and Catholic immigrants occurred in Philadelphia in 1844. The violence, termed the “Bible War” by contemporary newspapers, was precipitated by the school board’s agreement in 1843 to allow Catholic schoolchildren to read from their own version of the Bible. In meetings and rallies, Protestant leaders railed against the decision, urging

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audiences “to resist every attempt to banish the Bible from our public institutions.” Nativist groups such as the American Protestant Association and the American Republican Party stoked the smoldering anti-Catholic resentment. Public rallies and marches in Catholic neighborhoods led to fights between nativist and Catholic gangs with resultant casualties. Finally, in May and then in July 1844, rioting broke out in the Catholic wards. Protestant gangs and rioters roamed the streets for several days, burning Catholic churches, schools, and homes while Catholics and nativists exchanged gunfire. In the first round of rioting and violence, possibly as many as twenty people were killed; the July riots resulted in another thirteen dead and fifty wounded, including several marines and militia members called up to quell the violence. Catholics were on the losing end of the property damage while nativists were on the losing end of the casualties and public opinion. Many Protestants who otherwise supported Bible reading distanced themselves from the more extreme aims of the nativists. More than anything, the Bible War convinced Catholics that public schools would never accommodate their requests and that the only solution for Catholic children was a system of parochial schools. This failure of a public school settlement meant that conflict over the distribution of school funds for parochial schools would continue for years to come.52 The nativist movement reached a highpoint in the 1850s with the political successes of the Know-Nothing Party. Like other nativists, the Know-Nothings attacked Catholic education while they defended the Protestant character of many common schools. And like other nativist groups, the Know-Nothings embraced the argument that the public funding of religious schools violated the separation of church and state; in places, they became the most vocal supporters of the no-funding rule. In a handful of instances, Know-Nothings supported the enactment of laws and constitutional provisions at the state level to prohibit public funding of religious institutions, including parochial schools. In Massachusetts, Know-Nothings swept the 1854 state elections and were reputedly instrumental in obtaining passage of a no-funding provision in the state constitution.53 Nativism alone is not responsible for all of the state laws and constitutional enactments restricting the funding of religious education. In his study of antebellum nativism, The Protestant Crusade, Professor Ray Billington indicated that Know-Nothings were relatively ineffective in enacting anti-Catholic legislation, even in states where they briefly held clear majorities.54 Moreover, that impulse does not explain the basis for similar and earlier enactments in other parts of the country without significant religious dissension or nativist activity. Michigan adopted a no-funding provision in its 1835 constitution before the significant wave of Catholic immigration or the widespread establishment of

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Catholic parochial schools. According to Billington, at the same time that Michigan was drafting its constitution, the Protestant Home Missionary Society was reporting a lack of concern over Catholic activity in the upper Midwest. The nofunding prohibition was repeated in the 1850 Michigan Constitution without apparent controversy, even though Detroit’s Catholic immigrant population had grown significantly. Eight years earlier, the Detroit Board of Education sought to accommodate Catholic concerns by prohibiting the reading of the King James Bible in the public schools. After Protestant complaints, the board amended its policy in 1845 to allow the reading of either the Catholic Douay or Protestant King James version without note or comment, apparently diffusing the conflict.55 The Michigan Constitution served as the model for similar constitutional provisions in Wisconsin (1848), Indiana (1851), Ohio (1851), Minnesota (1857), Oregon (1857), and Kansas (1858), all states without significant conflicts over parochial school funding at the time.56 In Wisconsin, for example, the common school movement predated the Catholic Church’s establishment of a parochial school system. Despite growing tension between native Protestants and German Catholic and Lutheran immigrants during the late territorial period, there is “no evidence that the [Wisconsin] lawmakers and constitution makers were anti-religious in making the [no-funding] requirements, or that they harbored a prejudice against any sect.”57 Similarly, the minutes of the Oregon Constitutional Convention are bereft of any statements hostile to Catholicism or parochial school funding. Instead, the recorded debates reveal a desire to establish a constitutional principle. One Oregon delegate asserted, “[T]he theory of our government . . . is that the government shall be separated from the churches, and the maintenance and administration of religion; that religious duties shall be no function of the government.” Another remarked that he did not believe that congress had any right to take the public money, contributed by the people, of all creeds and faith[s], to pay for religious teachings. . . . A man in this country had a right to be a Methodist, Baptist, Roman Catholic, or what else he chose, but no government had the moral right to tax all of these creeds and classes to inculcate directly or indirectly the tenets of any one of them. The constitutional framers in these states were doubtless aware of conflicts over the school question. Yet there is little to suggest that they were motivated chiefly by anti-Catholic animus in adopting the no-funding provisions rather than by a commitment to securing a “complete divorce of church and state,” as one Oregon delegate declared. Such examples are not definitive, but they suggest a variety of motivations for enacting the no-funding provisions.58

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This is not to say that later refinements and applications of the no-funding principle were unrelated to the rise of Catholic immigration or the development of Catholic parochial schooling. Catholic requests for a share of the public school funds were fiercely opposed by public officials, educators, and Protestant leaders. But such opposition might have had many motivations. Professor Richard Garnett has observed, “The anti-Catholicism running through American history, law and, culture is not so easily reduced to widespread, irrational dislike . . . toward Irish immigrants [or the papacy]”: That American Protestants often misunderstood Catholicism, and labored under mistakes about Catholic doctrine, practice, and history, does not change the fact that many strongly disagreed with, and were not merely “biased” against, the Catholic Church. As many Americans understood it, the Church had certain aims, and it made certain claims about things that mattered. And, as many Americans understood it, these claims were false, these aims were dangerously un-American, and they needed to be resisted.59 Finally, people opposed dividing the school fund for reasons unrelated to the Catholic Church, including concern about the financial security of a nascent public education system and a desire to move away from a system of religiously based education to one that was more professional and standardized. AntiCatholic sentiment undoubtedly influenced the overall debate, but for education reformers, the funding of private religious schooling of any brand was inconsistent with their commitment to universal education and disestablishment.60

The Early Court Cases Until midcentury, the battle over Bible reading had been fought in state legislatures, on school boards, and in the streets. Finally, in 1853, a Catholic parent sought recourse in the courts. In Donahoe v. Richards, Lawrence Donahoe sued the public school committee of Ellsworth, Maine, after his daughter Bridget was expelled for refusing to read from the King James Bible.61 In his complaint, Donahoe charged that the school policy of Bible reading violated the state constitution’s prohibition on religious preferences and Bridget’s rights of religious conscience: “She was required to take place in a religious exercise from which her conscience shrunk, because, as she believed, God’s word was perverted in its meaning,” the attorneys argued in the complaint. In defense of its policy, the school committee argued that the practices were nonsectarian. The Bible was not used for religious worship or the “conveying [of ] instructions or impressions

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favorable to the peculiar tenets of any sect” but for moral development: “How can principles of morality be taught except on the basis of religion?” At the same time, the school’s attorneys insisted that the constitution did not prohibit the school from advancing religion generally. Religious and moral instruction was not the same as sectarian instruction, and schools were entitled to “preoccupy the minds of the young with the tender, the beautiful, the rhythmical, and magnificent, the sublime, which God in his bounty, the wisdom, too, has poured out so profusely into the minds of his evangelists and prophets.”62 The Maine Supreme Judicial Court agreed that the school could enforce Bible reading and upheld Bridget’s expulsion. Embracing the theory of nonsectarianism, the court held that the religious exercises were permissible because they did not include instruction in “articles of faith.” “No theological doctrines were taught. The creed of no sect was affirmed or denied.” The court further minimized the religious significance of the exercises by asserting that the Bible was “used merely as a reading book,” the use of which no more promoted Christianity “than would reading the mythology of Greece or Rome be regarded as . . . affirmance of the pagan creeds.” Then, inconsistently, the court agreed with the school district about the importance of Bible reading for transmitting morality. All people acknowledged that the Bible “is best fitted to strengthen the morals and promote the virtues which adorn and dignify social life” and recognized “the sublime morality of its teachings.” Thus, while the Maine court minimized the religious significance of the readings, equating the Bible with mythological stories, it clung to the Bible’s unique role in transmitting morality.63 The Donahoe court’s uncertainty over the nature of Bible reading would be repeated by courts throughout the remainder of the nineteenth century and into the next. Judges would struggle with whether Bible exercises were chiefly religious, secular, or something in between. Yet, so long as schools used those portions of the Bible upon which there was little disagreement—at least among evangelical Protestants—and instructed in “universal principles” of religion and morality, readings from the King James Bible were legally unobjectionable. Also, because instilling morals was justified, even necessary, readings would not infringe on an objector’s religious conscience. At least initially, this pattern meant that schools could use the Bible for distinctly religious purposes and were under no obligation to excuse dissenting students like Bridget Donahoe from participating.64 Most significant about the Maine court’s emphasis on the secular nature of the religious exercise was how it aligned nonsectarianism with constitutional principles. In Donahoe, the Maine court went out of its way to distance its holding from the school’s mild Christian-nation argument. The court denied that the acknowledgment in the state constitution of “the Sovereign Ruler of the

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Universe” implied “the [legal] superiority of any form of religion or of any sect or denomination,” nor did it justify the exercises, as the school’s attorneys had argued. Rather than creating a Christian state, the constitution recognized “no religion, nor any form of religion as such, as having any binding force over its citizens, against its will constitutionally expressed.” The nonsectarian exercise was consistent with disestablishment in Maine, the court asserted, which mandated “that no subordination nor preference of any sect or denomination to another shall ever be established by law.”65 The court’s tying of nonsectarian Bible reading to disestablishment had two contradictory effects. Initially, it narrowed the understanding of disestablishment by keeping an overtly religious practice within its scope. Nonsectarianism was constitutional and, for the short term, could be religious in character, though not in purpose. For the long term, however, by minimizing the religious and preferential nature of the exercises, the holding established those elements as part of the constitutional standard for future legal conflicts. While the Donahoe decision temporarily secured the existing practice, it laid the constitutional groundwork for its ultimate demise. Five years following Donahue, a sensational Bible reading controversy made its way to the Massachusetts courts. In the spring of 1859, disturbances broke out in several Boston public schools as Catholic students, encouraged by a local priest, began protesting the daily religious exercises. In one school, more than a hundred Catholic students were expelled after they refused to recite the Lord’s Prayer and the Ten Commandments. Acts of mass civil disobedience spread throughout schools in the Irish wards and threatened to undermine school discipline. Newspaper accounts reported that expulsions for refusing to participate in the Protestant exercises numbered as many as 400 in one week. People feared that the disturbances would “unsettle the school system and . . . turn the school house into an arena for settling disputed religious dogmas instead of a structure devoted to educational purposes.”66 A few days into the disturbances, McLaurin Cooke, a teacher at the worsthit school, seized student protester Thomas Wall and beat him on his hands with a cane until the boy relented. Sensationalized newspaper accounts reported that the caning continued for thirty minutes, resulting in significant wounds and swelling. Although Wall was not seriously injured, his father filed a criminal complaint for assault and battery and had Cooke arrested.67 Cooke’s trial in Boston police court became a local cause célèbre and turned into a referendum on Bible reading in the public schools. The central issue was whether Cooke was justified in requiring students to participate in the Bible lessons and in punishing those who refused. For a week, defense witnesses recounted the disturbances and how the Catholic priest, a Father Wiget, had orchestrated the outbreaks to the dismay of many Catholic parents. Wiget, who

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had awarded Tom Wall a medal for heroism, became as much the subject of the trial as Cooke. Painting the priest as the instigator of the disturbances, Cooke’s attorney declared that no one “had the right to instruct children to violate the rules and regulations of our public schools.” The court agreed, holding that Cooke was justified in his actions, and dismissed the charges.68 The court could simply have found that Cooke’s actions were necessary to enforce an official school policy without inquiring into the validity of the exercises. Instead, the court went out of its way to embrace Bible reading and nonsectarian instruction. The Bible had been placed in the public schools “not for the purpose of teaching sectarian religion,” wrote Judge Maine. Rather, the Bible was “the best book to teach children and youth the principles of piety, justice, and a sacred regard to truth, love of their country, humanity, . . . and those other virtues which are the ornaments of human society, and the basis upon which a republican constitution is founded.” The finding that Bible reading was nonsectarian served two immediate purposes. First, by justifying Bible reading on secular, pedagogical grounds rather than on religious grounds the court buttressed the school’s authority to engage in such practices. But unlike the Donahoe court, Judge Maine affirmed that a purpose of the exercise was also to instill “knowledge of God and of his will.” Equally important, the finding of nonsectarianism allowed Judge Maine to reject Wall’s claim that the policy violated his religious rights. Because Bible reading served the secular function of instilling important virtues, “[t]o read the Bible for these and like purposes, or to require it to be read without sectarian explanations, is no interference with religious liberty.” By holding that the purpose of the exercises was primarily secular, however broadly that term was defined, the court made reliance on religious rationales unnecessary.69 With the Maine and Massachusetts court decisions, nonsectarianism had received legal sanction. Even though each decision evinced a distinct Protestant bias, both courts relied chiefly on secular rationales to justify the overtly religious practices. As the Donahoe court surmised, relying on a religious rationale would have been unnecessarily distracting. Neither court appeared aware, however, that such reasoning would eventually undermine the uniqueness of Bible reading. Nonsectarianism also allowed both courts to brush aside complaints that Catholic students were compelled to participate in the ostensibly nonsectarian practices. If the practices were nonsectarian, then student complaints that the practices violated their rights of conscience were not deemed legitimate. Following such reasoning, in July 1859, the New York City Board of Education reaffirmed its policy of mandatory daily Bible reading in its schools against Catholic complaints.70 In response to the Cooke and Donahoe cases, the Massachusetts legislature passed a law in 1862 authorizing Bible reading in the public schools but

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reaffirming that it be conducted without note or comment and that no student be forced to participate in the exercises. Just how effective the new law was in correcting past injustices was open to debate. In 1866, the Massachusetts Supreme Judicial Court upheld the new law against a challenge by a student who had been expelled for refusing to bow her head during a prayer. The court agreed that schools could not require students “to conform to any religious rite or observance” that conflicted with their beliefs. But the regulation in question did not compel the student to join in the prayer and went no further than to require “quiet and decorum during the religious service.” Under this interpretation, the new law changed little in the way of practice as most schools had already dropped religious examinations during Mann’s administration. More important, the 1862 law institutionalized nonsectarianism and the view that Bible reading was not sectarian in character. The new law also reaffirmed the Protestant view that nonsectarianism provided a workable solution to the school question while adequately addressing Catholic complaints. At least initially, courts were willing to accept the secular rationale of nonsectarianism and uphold religious practices.71 The growing consensus among educators and now courts over nonsectarianism was not without detractors. School trustees in several Catholicdominated New York City wards directed their teachers to ignore the board’s directive and abstain from conducting Bible readings.72 Even some Protestants began expressing second thoughts over requiring children to participate in nonsectarian religious exercises. Harper’s New Monthly Magazine, which only seven years earlier had issued a spirited defense of Protestant nonsectarianism, published an editorial in 1860 that advocated removing religious instruction from the public schools. Stopping short of calling for the expulsion of the Bible, the magazine criticized those Protestants who insisted that schools should teach religion. “The Bible question will cease to make difficulty, if the great majority who . . . insist upon having it in the schools, will give practical proof of their freedom from bigotry, and their desire to make the book a manual of piety and charity, instead of dogmatic theology or priestly ritualism.” Harper’s Magazine’s critique generally fell on deaf ears. Nonsectarianism was viewed as a workable solution to the school question, one that also ensured the Protestant character of the nation’s public schools. However, the Harper’s editorial revealed that dissension was growing in the Protestant ranks.73

The Cincinnati Bible War Nonsectarianism received its first serious legal challenge in the Ohio case of Minor v. Board of Education, the most significant Bible reading case of the

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nineteenth century. Taking place in Cincinnati between 1869 and 1873 but attracting national attention, the case involved some of the nation’s greatest legal minds. As lawyers sparred in the courtroom, pro- and anti-Bible forces battled each other in pulpits and in the press for the fledgling soul of American public education. National newspapers reported every proceeding while Protestant, Catholic, Jewish, and freethinker leaders warned of the dire consequences of an outcome going either way. When the case was finally resolved, neither nonsectarian religious instruction nor understandings of the relationship between Christianity and the state would ever be the same.74 Cincinnati was the largest city west of the Appalachian Mountains and was as religiously and ethnically diverse as any American city. In the 1830s and again in the 1840s, large numbers of German and Irish immigrants settled in Cincinnati; most were Catholic but there were also sizable numbers of Lutherans, Jews, and German freethinkers, such that by midcentury half of the residents were foreign-born. Prior to the Civil War, relations between Cincinnati’s Protestant establishment and its large Catholic immigrant population had frequently become strained, with much of the tension involving the operation of the public schools. Daily Bible reading was inaugurated in the Cincinnati public schools along with their founding in 1829, even though the school board had insisted that “every thing sectarian, and all that might conflict with the religious tenets of parents” should be removed from the curriculum.75 In 1842, at the request of Bishop John Purcell, the board modified its policy to allow Catholic students to be excused from the religious exercises, establishing a rule that “no pupil should be required to read the Testament or Bible against the wishes of parents or guardians.” This practice continued until 1852, when the school board expanded the policy to permit dissenting students to “read such version of the sacred scriptures as their parents or guardians may prefer.” Although the Catholic Telegraph praised the tolerance and “liberality which characterize[d] the Cincinnati [School] Board” and its policies, the Catholic leadership still objected to the Protestant bias of the curriculum. After 1852, further accommodation was not forthcoming, and Purcell set out to establish a competing system of Catholic “free” schools in Cincinnati.76 By 1869, the number of Catholic children being educated in the area’s parochial schools had risen to between 12,000 and 15,000, whereas the public schools enrolled only 19,000. The rapid growth in Catholic immigration meant that the parochial schools would soon surpass the public schools in population. In order to entice Catholic parents to send their children to the public schools, board members proposed two resolutions prohibiting religious instruction and “the reading of religious books, including the Holy Bible,” in the common schools. A Catholic board member also proposed folding the Catholic schools

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into the public education system. Archbishop Purcell announced tentative support for the consolidation plan and resolutions, but later withdrew it in a letter reaffirming that proper education could occur only under the auspices of the Catholic faith. Despite the setback to the consolidation plan, the school board went forward and approved the resolution prohibiting the use of the Bible in the public schools.77 The board’s action unleashed a maelstrom of opposition among the Protestant clergy and press, with the Methodist Christian Advocate claiming that the decision not only threatened the moral and intellectual development of youth, but foretold “the ruin of the Republic.” The fact that the board had been in “secret negotiations” with the archbishop to give up Bible reading in order to fold in the Catholic schools—which, critics argued, would remain Catholic but in name only—struck many as a nefarious Catholic plot to undermine public education. Protestant ministers castigated the board’s Catholic, Jewish, and Unitarian members from the pulpit, with dissenting board member the Reverend Amory D. Mayo (a conservative Unitarian) declaring that Catholics and “an Atheistic sect [had] joined hands to divide, distract, and wholly change that great institution”: the public schools. Opponents hurriedly organized a Friends of the Bible committee, held rallies—one attracting over 8,000 supporters—and petitioned the city council and school board to reinstate the religious exercises.78 Nativism and anti-Catholic sentiment, which were never far below the surface, ran rampant. In a series of public lectures, Reverend Mayo warned that “the black brigade of the Catholic priesthood [i.e., Jesuits]” was behind the resolutions and was seeking nothing less than “to knock out [the republic’s] underpinning, to poison the very wells of its water of life . . . and [to] darken the very light by which it lives and breathes.” Sounding the common conspiracy theme, the Christian Advocate declared that Catholic opposition to Bible reading was actually part of a “Romanist policy” that sought “the overthrow, the abolition, of the whole American scheme of Common School Education.”79 Nativism was but one of the weapons utilized by the pro-Bible group. With Protestant Bible reading in serious jeopardy for the first time, the Bible reading supporters abandoned nonsectarianism as their primary rationale, reverting to religious justifications for the practice. In one speech, Reverend Mayo argued that the board’s action contradicted “the divine law from which all authority on earth is derived” and was inconsistent with America’s role as a Christian nation. Christianity and morality, Mayo insisted, “are the very foundation of human society itself, the basement structure of their whole form of government, the sanction of all their laws, and the final judge of all their public policy.” “[O]urs is a Christian government,” echoed the Christian Advocate, and the public

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schools, “although not sectarian, are Christian as yet, thank God!” Because the common schools relied on the same moral foundations as the democratic state, they could no more dispose of the Bible, that “great foundation of morals,” than they could books on literature and mathematics.80 Not all Protestants viewed the Cincinnati School Board’s action with the same degree of alarm. During the controversy, several Protestant leaders began advancing arguments that public schools should be free of all religious instruction, including Bible readings. Increasingly, Bible reading, prayer, and hymn singing, even when conducted in a nonsectarian manner, were seen as exclusive, divisive, and inconsistent with truly universal education. In December 1869, Henry Ward Beecher, one of the nation’s best-known preachers, wrote an opinion piece for the New York Tribune that argued against Bible reading in the schools. While asserting his own belief that Bible reading “would do a world of good and no harm,” Beecher declared that “compulsory Bible [reading] in schools is not in accordance with [the] American doctrine of the liberty of conscience” and should be abolished. The state, Beecher insisted, “has no business to teach religion, or to show partiality to one or another sect in religion.”81 Beecher’s sentiment was echoed by Presbyterian minister Samuel T. Spear, a columnist for the Independent (the nation’s leading Protestant newspaper), the Atlantic Monthly, and Harper’s Weekly. Harper’s published an article in December calling for the removal of the Bible from the common schools. The article asserted that the time had come for Protestants to embrace the nation’s religious diversity and recognize that not all Christians agreed on the same “great general truths” of the Bible, the latter statement challenging the premise of nonsectarianism. Because Christians disagreed over even basic theological teachings, public schools should be restricted to secular education solely and “should have nothing to do with any religious tenets whatever.” Harper’s went so far as to question the spiritual value of rote prayer and Bible reading, asserting that the great lessons of Christian charity and love of God “do not appear in a ceremonial and hollow reading [of ] a chapter in the Bible.” The article was the latest in the progression for Harper’s from its 1853 position embracing Bible reading as the means of ensuring evangelical dominance of the public schools and then more ambivalent position in 1860.82 This evolution in attitudes toward nonsectarian instruction did not mean that Protestants had converted to ecumenicalism. Mainstream evangelicals were increasingly concerned that Bible reading and religious instruction provided Catholics with ammunition in their ongoing battle for a share of the common school funds. Instead of providing authentic religious training, Bible reading simply “furnish[ed] a weapon for the enemy” in their campaign to destroy the public schools. “Do not leave them an honest sectarian objection,”

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Harper’s argued. “Free the schools of every thing against which this kind of opposition may be fairly urged, and then stand fast upon the principle that the public money shall not educate the people in the private religious faith of the teachers.” Just as moderate evangelicals had earlier embraced nonsectarianism as a way of ensuring the Protestant character of public education, some were now abandoning its most notable feature in order to hold on to a semblance of Protestant control of the schools.83 Unable to convince the Cincinnati School Board to rescind its action, the pro-Bible faction sought recourse in the courts. On November 3, 1869, a committee of Bible reading supporters obtained a preliminary injunction from the local superior court halting implementation of the ban. The matter was then set for a hearing on the merits in late November.84 The trial record in Minor represents the era’s most thorough set of legal arguments about the relationships among religion, law, and republican government. The trial lasted five days and witnessed both scholarly and hyperbolic arguments for and against Bible reading. The attorneys represented the upper echelon of the Ohio bar and included several former and future judges, including future U.S. Supreme Court justice Stanley Matthews.85 The plaintiffs, though having the support of the Protestant establishment and a majority of citizens, had the more difficult legal task. To convince the three-judge court to overturn the school board’s action, which carried a presumption of validity, their attorneys had to argue that the board had exceeded its authority in prohibiting Bible reading. This forced them to argue that the state constitution did not simply permit religious exercises in the public schools but actually required such practices. To further complicate matters for the plaintiffs, they had to reconcile language in the constitution banning government preference for “any religious society” and prohibiting any religion or sect from controlling the public schools. Adding to their difficulties, the plaintiffs’ attorneys faced hostile precedent from the state supreme court’s Sunday law cases, which disavowed the state’s duty to promote Christianity.86 To counter these legal obstacles, the plaintiffs’ attorneys argued that principles underlying the constitution presupposed a close relationship between church and state, such that the latter had an affirmative obligation to promote general Christianity. They pointed to a provision in the state’s Bill of Rights which stated that, because “religion, morality and knowledge [were] essential for good government,” the legislature had the duty to protect “the peaceable enjoyment . . . of public worship, and to encourage schools and the means of instruction.” Plaintiffs maintained that this section, incorporated from the Northwest Ordinance of 1787, obligated the state to teach religion and morality in the public schools. And that “‘religion’ to which the Constitution refers,”

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insisted plaintiffs’ attorney William Ramsey, is “the religion of the Holy Bible,” the prevailing religion of the people.87 To bolster their interpretation of the constitutional text, plaintiffs’ attorney Rufus King raised a Christian-nation argument. Initially, King preached moderation, stating that the religion recognized in the constitution, the one to be taught in the public schools, was “not sectarianism, nor theology, but the eternal, immutable, and essential principles of the Bible.” He insisted, however, that it was “undeniable that the ‘religion’ which the Constitution of Ohio expressly recognizes, is Christianity,” meaning Protestantism. “This is beyond doubt or cavil, a Christian state. That is the general and prevailing religion of the people; and the courts are bound to notice and maintain it, just as they would any general custom of the State, whenever it is called in question.” King acknowledged that, in Bloom v. Richards and McGatrick v. Wason, the Ohio Supreme Court had held that Christianity was not part of the common law. Brushing aside those decisions, King declared that, while Christianity might not have the force of law, “its precepts and principles enter largely into the formation of the common law.” Because those holdings had turned on a particular construction of the Sunday law, “all that is said in those cases concerning the relation between religion and the State, is simply obiter dictum—irrelevant to the matter decided.” Rather than following the earlier decisions, the superior court was required “to make some sense” out of the constitution’s language affirming the necessity of religion for public instruction. The constitution obligated public schools to teach religion and morality, and that religion could only be Protestant Christianity.88 The school board’s attorneys disputed the plaintiffs’ claims point by point. They denied that the state constitution imposed an affirmative obligation on schools to teach religion. Stanley Matthews insisted that the phrase in the constitution from the Northwest Ordinance was only declaratory and merely implied that “religion, morality, and knowledge” would be the outgrowth of an educated public. To counterbalance the ordinance, the board’s attorneys argued that the prohibition against religious preferences (and language declaring that no religious sect could control the public schools) indicated that religious instruction was likely unconstitutional. At a minimum, Matthews asserted, “[t]here is nothing whatever to require, or even to justify the conclusion that any express instruction in religion should be given in the schools at all.”89 The crux of the plaintiffs’ case was their claim that Protestantism was entitled to legal preference because of Ohio’s status as a Christian state. On this claim, the board’s attorneys concentrated their attention. Johann Stallo, a leader in the local free-thought community, equated the plaintiffs’ Christian-nation claim with the horrors of the European Inquisition and the colonial blue laws.

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Insisting that Christianity had historically promoted religious persecution and stifled learning in order to perfect religious conformity, Stallo urged the judges not to “do violence to the spirit of our liberties, no less the words of our Constitution by deciding that Christianity—Protestant Christianity—being the law of the State, the rights of Jews, Catholics, and freethinkers not be considered.”90 Stanley Matthews offered a more restrained rebuttal, insisting that the state constitution’s no-preference clause refuted claims that Christianity was entitled to legal recognition. The constitution provided that “religion is a concern exclusively of the individual person—a matter between man and God—with which the State has no right whatever to interfere,” Matthews stated. “No man can be treated as an outlaw because he is an infidel.” Matthews undertook an exhaustive refutation of the leading cases declaring Christianity to be part of the law to show how they had been misconstrued by the plaintiffs. He claimed that none of the cases authorized courts to “take notice of, and base their judgments upon . . . the precepts of Christianity on the ground of their sacred character or divine origin.” At best, such judicial statements meant only that “the law takes notice” of the religion “professed by the mass of the population” when determining whether a defendant has breached the peace and public order. For Matthews, the maxim did no more than acknowledge the influence of Christianity in American culture. Because the maxim had no legal force, it could not be the basis for judicial decision making.91 Matthews concluded with a rebuke of nonsectarianism as a rationale for Bible reading. He disputed that school officials could ever identify and teach “precepts common to all Christian denominations.” Claims of a “broad Christianity” represented “an impossibility in fact as well as in law.” Matthews insisted that because even Protestants disagreed over scriptural emphasis and interpretation, it was hopeless to search for “any residuum of a common factor” appropriate for instruction in the schools. The school’s lawyers thus denied that Bible reading could be justified on either religious or secular grounds. Nonsectarianism was an artificial concept.92 The arguments in Minor presented contrasting views of the meaning of constitutional disestablishment. The plaintiffs’ version was of an interdependence between religion and government, a relationship that permitted the state to prefer Christian (i.e., Protestant) precepts in policy and law. At the same time, the plaintiffs advanced an earlier understanding of nonsectarianism in support of Bible reading—a version Horace Mann and other education reformers renounced—one that was justified by its religious goals and effects. In contrast, the school board’s attorneys embraced an understanding of disestablishment that repudiated even Mann’s more benign brand of nonsectarianism. Bible reading and the religious instruction contained in texts such as the

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McGuffey Reader were sectarian because they preferred Protestantism. But more significant, the school’s attorneys insisted that Bible reading presented a constitutional issue. Disestablishment meant a secular state, one in which all religions were equal and none preferred. Religious equality and disestablishment were intertwined and protected by the federal and state constitutions. Any suggestion that Christianity was part of the law or that the government was obligated to promote the same would “do violence to the spirit of our liberties, no less than [to] the words of our Constitution.”93 The arguments concluded on December 3, 1869, and the court took two months to hand down its decision.94 On February 15, 1870, by a vote of 2–1 with Judge Alphonso Taft dissenting, the Ohio Superior Court held that the board’s action removing Bible reading had been improper. Like the arguments of counsel, the court opinions offered extensive discussions of the relationship between church and state. Both majority opinions sidestepped the issue of the school board’s authority to enact resolutions banning religious exercises, focusing instead on the heart of the plaintiffs’ claim: whether the Bible reading ban conflicted with Ohio’s status as a Christian state. Addressing the premise answered the question: Christianity was “the prevailing Religion in the State,” Judge Marcellus B. Hagans wrote. Hagans asserted that “religion of some sort, was always a necessary adjunct of the State,” especially in civilized nations: The framers of the Constitution felt that the moral sense must necessarily be regulated and controlled by the religious belief; and that whatever was opposed to religious belief, estimated by a Christian standard, and taking into consideration the welfare of the State, would be, in the highest degree, opposed to the general public sense, and have a direct tendency to undermine the moral support of the laws, and corrupt the community. More particularly, Hagans found that the state constitution’s declaration that “religion, morality and knowledge are essential to good government” obligated the state to teach children the “elementary principles of religion.” Because the board’s resolutions “positively prohibit religious instruction, and . . . cut off the instrumentality by which those essentials to good government are cultivated,” Hagans concluded, they must be struck down.95 Judge Bellamy Storer, also writing for the majority, expanded on Judge Hagans’s Christian-nation analysis. Approaching the issue from a different perspective, Storer found that the school board’s decision was ultra vires and void because it conflicted with the spirit of the state constitution. “Without the teachings of the Holy Scriptures there is, we believe, no unvarying standard of moral duty, no code of ethics which inculcates willing obedience to law, and

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establishes human governments upon the broad foundation of the will of God.” “Revealed religion, as it is made known in the Holy Scriptures, is that alone that is recognized by our Constitution.” Storer also rebuffed Stanley Matthews’s argument that reading from the King James Bible was necessarily sectarian. Since both Catholic and Jew recognized the Bible as the “Word of God,” how could it be considered sectarian? Storer insisted that “[w]hat we understand by sectarianism is the work of man, not of the Almighty.” This circular argument— that nothing in the Bible was sectarian, only the meanings people attributed to its passages—allowed Storer to find Bible reading to be nonsectarian and consistent with the state constitution. Because Bible passages could be read without necessarily inviting dispute, the practice could not infringe upon rights of conscience.96 Only Judge Alphonso Taft, father of the future president and chief justice William Howard Taft, acknowledged the problems inherent in the plaintiffs’ arguments. Taft first noted that state law awarded “complete discretionary power” to school boards over the management of their schools. Constitutional references to “religion, morality and knowledge” did not command religious instruction but merely recognized that religion and morality “would be promoted by encouraging schools and the means of instruction generally.” Taft asserted that the board’s action in banning Bible reading did not violate the constitution nor evince hostility toward religion, “but rather [indicated] a neutrality toward all sects, which would not be otherwise maintained, and which had become essential to religious peace.”97 Taft spent most of his opinion responding to claims that Bible reading was required because Ohio was a Christian state. He reminded his colleagues that in Bloom v. Richards the state’s supreme court had rejected the “idea that the Christian religion was entitled to any higher or other privileges, before the law.” Taft interpreted this to mean that the constitution prohibited all sectarian forms of worship in the public schools. “What then is the character of the morning exercise of reading the passage in the Bible, and appropriate singing in the schools daily?” Answering his own rhetorical question, Taft wrote: I think we are bound to regard it as both an act of worship, and a lesson of religious instruction. . . . I can not doubt, therefore, that the use of the Bible with the appropriate singing . . . was and is sectarian. It is Protestant worship. And its use is a symbol of Protestant supremacy in the schools, and as such offensive to Catholics and to Jews. The implications of Taft’s opinion were clear. Because Bible reading was inherently sectarian, not only was the school board correct in abolishing the religious exercises, its action was mandated under the state’s Bill of Rights.98

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Taft’s opinion was the most explicit judicial repudiation of the Christiannation argument to date. Irrespective of whether the maxim retained any meaning—which Taft insisted it did not—claims that the law incorporated and favored Christianity conflicted with the clear language of the state constitution: It is, therefore, an entire mistake, in my opinion, to assert, that the Protestant Christian religion has been so identified with the history and government of our State or country . . . or that when the Bill of Rights says that “religion, morality and knowledge being essential to good government,” it means the Protestant Christian religion. Taft also rejected arguments that Protestantism deserved favored status as the majority faith: “No sect can, because it includes a majority of a community or a majority of the citizens of the State, claim any preference whatever.” The Bill of Rights, which protected freedom of conscience and prohibited religious preference, required government to be neutral in religious matters, “while protecting all, it prefers none, and it disparages none.” To hold otherwise, Taft concluded, or to hold that Protestants “are entitled to have their mode of worship and their bible used in the common schools . . . is to hold to the union of Church and State, however we may repudiate and reproach the name.”99 In his opinion, Taft articulated arguments that judges had been developing for more than two decades but few had expressed so cogently. He identified Bible reading and religious exercises, even when done for reputedly secular reasons, as inconsistent with the separation of church and state. Constitutional principles required a secular government, Taft insisted, and guaranteed religious equality, not merely toleration or the winking at preferential treatment for the majority faith. “The ideal is absolute equality before the law, of all religious opinions and sects.” That ideal could be accomplished only through complete disestablishment, which would sever any obligations and commitments between the church and the state. Taft’s opinion was groundbreaking, but at the same time reaffirming of arguments that people had made throughout the century.100 Taft’s opinion, although superior in logic and analysis, carried neither the day nor public opinion. The court majority made the injunction permanent, thereby prohibiting the school board from enforcing its resolutions. Protestant and secular newspapers generally applauded the ruling, with the New York Tribune calling Judge Hagans’s lead opinion “able,” and the Methodist Christian Advocate declaring that Protestant Ohio was again “safe, at least for a while.” In contrast, Taft was branded the “Unitarian Atheist” and would later be passed over for the Republican nomination for governor of Ohio.101 The New York Observer was more philosophical, speculating that “the question of expelling

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the Bible from our common schools . . . is not going to be forgotten like a sensational event of a day. The principle involved is too grave and the results aimed at reach too far down into the life of our institutions.” The Independent concurred, noting that “[n]othing is more evident than that the school question is now fully launched upon the public.” The controversy had now “become a living necessity of the times.” Both newspapers agreed that the battle for the soul of America’s public schools was far from over.102 The predictions of the Observer and the Independent were, of course, correct. The school board appealed the decision to the Ohio Supreme Court, where the case languished for three years. Finally, on June 24, 1873, the supreme court unanimously reversed the superior court, reinstated the school board’s resolutions, and dismissed the case. On the central issue, the court held that the school board possessed the authority to decide whether to hold religious exercises. But like the attorneys and judges who were involved in the initial trial, the justices recognized that larger issues were at stake that needed to be addressed. Justice John Welch responded to the claim that the state was obligated to support Christian principles, both generally and in the public schools. He disavowed that the term “religion” contained in the constitution meant Christianity or “that Christianity [was] part of the common law of the country.” Reaffirming the court’s earlier declarations disputing the maxim, Welch wrote: Those who make this assertion can hardly be serious, and intend the real import of their language. If Christianity is the law of the State, like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The maxim, apparently, was an antiquated concept with no role in the American legal system. “Legal Christianity is a solecism,” Welch claimed, “a contradiction of terms.”103 On the issue of Bible reading, Justice Welch agreed with Judge Taft that the exercises were devotional and favored Protestantism, intimating that they might be unconstitutional. However, he did not go as far as Taft in rejecting the concept of nonsectarianism. Like Taft, Welch expressed doubt about whether agreement could ever be reached over the portions of the Bible to teach: “Suppose the state should undertake to teach Christianity in the broad sense in which counsel apply the term, or the ‘religion of the Bible,’ so as also to include the Jewish faith—where would it begin? how far would it go? and what points of disagreement would be omitted?” Ultimately, the court was not required to rule on the nonsectarian exercises; that decision was one for the legislature or

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local boards of education. Welch was clear, however, that the state constitution did not require religious instruction, and the failure of schools to so provide did not evince hostility toward religion.104 While Welch stopped short of declaring that all Bible reading in schools would be unconstitutional, his opinion embraced Taft’s broad view of disestablishment. The principle required more than a formal or political uncoupling; it also prohibited any legal preferences for Christianity or any religion that fell short of an official relationship. Citing James Madison, Welch wrote, “Religion is eminently one of th[o]se interests, lying outside the true and legitimate province of government.”105 “United with government, religion never rises above the merest superstition; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.” Thus, not only was the state not obligated to reinforce Christian principles through its policies, it was unqualified to do so. “[N]o government is at all adapted for producing, perfecting, or propagating a good religion,” Welch insisted. “The state can have no religious opinions.” In so declaring, the Ohio Supreme Court refuted the view, advocated by New England courts some sixty years earlier, that distinguished disestablishment from the state’s obligation to support Christian norms.106 The court’s expanded view of disestablishment was revealed in another passage. As an additional reason that Bible reading might be unconstitutional, Welch raised the no-funding rule: the government had “no right to tax [citizens in] support of religious instruction” in public schools, and to do so was “the very essence of tyranny” and the “first step in the direction of an ‘establishment of religion.’” Welch provided several rationales for why governments were barred from supporting religion, financial or otherwise: it averted “conflict of opinions as to things divine” and “violation[s] of private rights [and] public peace”; it protected “a man’s right to his own religious convictions”; and it prevented government corruption of religion through “the doctrine of ‘hands off.’” As used in this context, the no-funding principle supported Catholic interests by protecting rights of conscience and preventing religious preferences in the public schools. Taken as a whole, the constitutional principles announced in Minor were as important as the specific holding.107 Considering the level of attention given to the case at trial, the public reaction to the Ohio Supreme Court’s decision was decidedly mild. Both the New York Times and New York Tribune made only passing references to the holding. The lapse of time—more than three and a half years—and the rise of similar controversies closer to home made the decision less noteworthy. Also, legal rationales aside, the ultimate holding vested broad discretion in local school boards to decide for themselves whether to allow religious instruction. The

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Christian Advocate, which had strenuously opposed the Cincinnati resolutions in 1869, put the best face on the decision by claiming that it “ordain[ed] a kind of ‘local option,’ not with the people directly, but of the Boards. . . . [P]ractically this may be a very good decision in most cases, for probably in the great majority of cases school boards will favor the continuance of the Bible reading where it is now practiced.” Because Welch had stopped short of declaring Bible reading to be unconstitutional, the Christian Advocate’s analysis was technically correct. But the Advocate’s stance on Bible reading also had mellowed in the interim. The journal suggested that the best solution might be “to make the public schools secular institutions” open to all religious groups and “to remand the giving of religious instruction to the Church and the family.”108 The subdued response to Minor could not mask the significance of the holding. For the first time, judges had declared Protestant Bible reading and its patron, the Christian-nation maxim, to be inconsistent with constitutional principles of government neutrality and religious equality. Welch and Taft had also rejected nonsectarianism as a workable theory and in the process had cast serious doubt on the constitutionality of Bible reading in the public schools. The degree to which the Minor decision represents a condemnation of nonsectarianism generally can be debated; one could read the supreme court’s opinion as rejecting only the more religious justifications for nonsectarianism that the plaintiffs had asserted at trial. But on appeal, the plaintiffs’ attorneys had restrained their hyperbole, relying chiefly on secular rationales for the nonsectarian practices.109 Regardless of the particulars, Minor was a watershed decision, and its repercussions would be felt throughout the remainder of the century and into the next. In future legal disputes, state courts would split almost evenly over the legality of prayer and Bible reading in the schools. Minor had broken open the gates. Advocates of Bible reading would point to the decision as a harbinger of the moral decline of the nation while secularists would celebrate the decision as a turning point in the transformation of nineteenth-century church-state law.110 Most significant, Minor indicated that religious justifications for the nonsectarian practices were effectively dead. With the exception of two lower court decisions from Pennsylvania that would rely on the authority of Updegraph, no future Bible reading case would rely on religious arguments to support the practices. The principle of nonsectarianism, developed to preserve Protestant hegemony over the public schools while accommodating an increasingly diverse religious population, provided a sufficient legal theory for future cases, thereby rendering religious justifications obsolete. That development, however, would help to lead to nonsectarianism’s downfall. After Minor, the controversy shifted to the cogency of “secular” nonsectarianism and the issue of whether Bible reading in schools was itself constitutional.111

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9 The Secularization of Nonsectarianism

A slowly, but constantly growing fact in modern history, [is] the separation of church and state. —William T. Harris, “The Division of School Funds for Religious Purposes” (1876) The Minor decision forever changed the way in which lawyers and judges approached prayer and Bible reading cases, though it did little to settle the school question. As much as educators might have wished otherwise, Catholics and conservative Protestants would not let the issue die. Catholic officials rejected the Minor holding as a way to resolve the controversy, asserting that to “make the schools purely secular” was “worse than making them purely Protestant.” Most Protestants also were unwilling to acquiesce to the court’s ruling; the conservative Christian Statesman wrote that a minority of unbelievers, now “[a]rmed with the recent judgment of the Supreme Court . . . will be able ultimately to drive the Bible out of all the schools in the State.” The stakes were high, as evangelicals counted on the public schools to pass on those Christian values necessary to perpetuate American culture. “With the expulsion of the Bible, come expurgated school books from which every trace of Christian thought has been carefully erased,” the Statesman warned in 1874. The ultimate result would be that “the Christian people of the country will [be] robbed of their heritage in the public schools.” To conservative Protestants, the fact that a state supreme court could discard Bible reading

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only indicated the seriousness of the threat facing Christian society and highlighted the need for remedial action. Such concerns would lead groups of various persuasions to conclude that the school question could be resolved only through some form of constitutional amendment.1 Following the Minor decision, disputes over religious exercises continued to erupt in communities with heterogeneous religious populations. In 1873, Catholic students were expelled from several New Jersey schools for refusing to take part in religious exercises, creating a new controversy between Catholic parents and Protestant board members. Partially in response to those incidents, the following February a group of citizens in Vineland, New Jersey, drafted a resolution calling on the local school board to discontinue “religious exercises of every kind (the reading of the Bible included) in our public schools.” Submitting a resolution supported by 100 signatures to the school board in April, the memorialists were met with a counter-petition containing nearly 1,000 signatures. Not surprisingly, Bible supporters carried the day.2 The outcomes of local controversies were not all one-sided. Following the Cincinnati case, the school boards in New York City, Chicago, Buffalo, and Rochester, New York prohibited Bible reading and religious exercises in their respective schools. When a similar measure was proposed in Philadelphia, religious opposition forced the school board to table the measure. Conservative Protestants sensed a discernible trend, and they rallied their forces: “Everywhere the indications of a rising tide of Evangelical Protestant sentiment on the school question are visible,” wrote the free-thought journal the Index. “Chicago ministers are almost a unit in protesting against the exclusion of the Bible from the schools.”3 One group of conservative Protestants mounted a campaign for a constitutional amendment to insert a recognition of God in the preamble, in part to ensure that the United States and its schools remained “Christian.” The soul of the nation and its relationship with God were at stake. As one Protestant leader declared: The expulsion of the Bible is only the starting point; it means ultimately the elimination from public instruction of all that tends to the promulgation of the doctrines of true religion, or morality, and of the rights of free human worship. . . . It is time for the people of America to arouse, and, if there is no law or statute in the Constitution to specify what principle of religion or of faith shall be sustained, then it is necessary for the people to speak and amend the Constitution.4 Closely related to the controversy over religious exercises in the public schools was the issue of whether Catholic, Lutheran, and other religious schools

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should receive a share of the public school fund to pay for the education of the children attending those schools. Many observers thought—or hoped—that the funding issue had been resolved by the enactment of constitutional provisions and statutes like the 1842 New York law, but Catholic officials continued to push for an equitable distribution of the school funds. As they encountered hostile state laws and court rulings, Catholics turned their efforts to local funding sources. In larger cities with burgeoning immigrant populations, public officials were often sympathetic to Catholic requests for financial support for their schools and orphanages.5 As discussed in the previous chapter, the New York Supreme Court (now a trial court) had held in 1851 that a Catholic orphanage was not a common school and thus ineligible to receive a share of the state’s school funds. Sixteen years later, the court narrowed that ruling by holding that a Catholic orphan asylum in Rochester was entitled to a share of moneys raised by the city that were not derived from the school fund, despite language in the earlier decision that recommended keeping publicly supported institutions “free from every thing savoring of sectarian influence and control.” Most school officials and Protestant leaders viewed the distinction of funding charitable care but not education as legal semantics, as many orphanages were attached to parochial schools and the public funds were fungible.6 Harper’s Weekly reported that in 1871, the same year as the Catholic archdiocese had petitioned for the removal of the Protestant Bible from New York City schools, it had received over $500,000 for its schools and charities from the public treasury. Even though the legislature had enacted a new ban on public support for sectarian education in 1871, by 1875 Catholic charities were still receiving over $370,000 a year from the state. Harper’s Weekly complained that, because all Catholic agencies were interrelated, no one really knew how this money was being spent. The New York situation was mirrored in other cities with large immigrant populations, albeit on a smaller scale. The funding controversy was becoming so intense that the New York Tribune wrote in an 1875 editorial entitled “A Coming Struggle” that the issue was threatening “the very existence of the republic.” The division of public funds for parochial education “excites sharp controversy, and seem[s] likely to have an important part in the readjustment of party lines. . . . Sooner or later the broad question must be met, ‘Whether popular education belongs to the State or the churches.’”7 The climate was ripe for someone to captivate the public imagination by proposing a solution to both problems. It came from an unlikely source. On September 30, 1875, President Ulysses S. Grant delivered a speech before the Society of the Army of the Tennessee convention in Des Moines, Iowa. In his remarks, he urged the attendees:

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Encourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools. Resolve that neither the State nor Nation, nor both combined shall support institutions of learning . . . [that teach] sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the Church, and the private school, supported entirely by private contributions. Keep the Church and State forever separate. Grant declared that these safeguards were necessary to “strengthen the foundations” established by “our patriotic forefathers,” so that “the battles which created the Army of the Tennessee will not have been fought in vain.” By equating the school question with the preservation of the republic before a group of Civil War veterans, Grant assigned the utmost significance to resolving the controversy.8 Newspapers across the country reprinted Grant’s speech, and the response was overwhelmingly favorable. The Chicago Tribune wrote that the speech “set the nation agog.” The Methodist Christian Advocate described the speech as “full of wisdom” and called for a constitutional amendment to put the recommendations into place. Even the Index called the speech “great,” despite its criticism of atheism. The president had placed the school issue above politics by identifying free education with the nation’s future. Only Catholic journals questioned the proposal, with Catholic World suggesting that Catholics were to be forgiven if they mistakenly assumed that “[Grant’s] speech was fulminated by his zeal against [the Catholic Church].”9 Later, in his December address to Congress, Grant was more explicit about the scope of his proposal. He asked Congress for a constitutional amendment making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all the children in the rudimentary branches within their respective limits, irrespective of sex, color, birthplace, or religions; forbidding the teaching of said schools of religious, atheistic, or pagan tenets; and prohibiting the granting of any school funds or taxes . . . for the benefit or in aid, directly or indirectly, of any religious sect or denomination. This language, suggesting federal involvement in public education, was a shot across the bow for most Democrats, particularly those from the South, as it would have obligated states to provide public schooling for all children, including black children. Even though language requiring universal education would not make it into later versions of the proposed constitutional amendment, this

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issue remained associated with the proposed amendment and fueled the ensuing public debate.10 While few Protestants criticized Grant’s proposal, no one misunderstood his motivations. Grant’s administration was racked by corruption, and his political future, as well as that of the Republican Party, depended on diverting public attention away from the revelations of the Whiskey Ring. In the last national election, the Republicans had lost nearly half of their seats in the House of Representatives and those of seven northern and border-state senators. Grant was apparently concerned that the Democrats were monopolizing the reform issue through their relentless attacks on his scandal-ridden administration and would recapture the presidency or the Senate in 1876. One way to deflect attention was to emphasize universal public education, an issue with which the Democratic Party, with its southern conservative wing and its Catholic following, had never been associated. As early as 1871, Republican Party chair Henry Wilson had proposed that universal education should become the party’s vanguard issue.11 Grant’s proposal was also a way to align the Republican Party more closely with the Protestant cause. Evidence suggests that Republican strategists seized on the Catholic/immigrant issue (as manifested in the school question) as a substitute for the “bloody shirt” when public interest in Reconstruction began to wane. Even the Republican New York Times acknowledged that an “appeal to religious passions was worth twenty-five thousand votes to the Republicans.” Grant likely sought to capitalize on this trend as a way of propelling himself into a third term as president. This fact alone did not make the proposal antiCatholic—Grant’s remarks criticized sectarianism along with “pagan” and “atheistical doctrines”—although he decried “superstition, ambition and ignorance,” which were code words for Catholicism. But Grant and the Republicans knew that the proposal would appeal to the prejudices as well as the noble instincts of voters. The Catholic Standard characterized Grant’s speech as “an attack on the Catholics of the United States,” while Catholic World challenged the president to be true to his word. “[W]e find nothing in the oration with which we are in the least disposed to take issue,” the World editorialized. “We agree with the President. . . . No ‘sectarianism’ in our common schools; and, therefore, ‘not one dollar’ to our present system of schools, because they are sectarian.” The World doubted that the proposal would be accepted at face value. It called upon Grant to free Catholics from the tax burden of supporting Protestant-oriented public schools if they could not receive their fair “pro rata” share of the school fund for their schools.12 Protestants generally applauded Grant’s proposal as a way to combat Catholic designs for parochial school funding. Still, some took his call for leaving

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religious instruction to “the family altar” and “forbidding the teaching . . . of religious . . . tenets” as an attack on Bible reading. Conservative Protestants expressed fear that a constitutional amendment might accomplish Catholic goals of excluding the King James Bible from the schools. This concern led evangelicals to rally their forces against efforts to banish Bible reading. “[A] great mass meeting has just been held in New York,” reported the Index, “and an ‘American Common School League’ has just been formed at another mass meeting in the Cooper Institute, for the same purpose” of preserving Protestant Bible reading in schools.13 On October 21, 1875, a large rally was held in the Broadway Tabernacle in New York, attracting the most influential clergymen in the city. The meeting, likely nativist affiliated, was filled “from the pulpit’s edge to the outer doors, by the opponents of the measure that would banish the Bible from the public schools,” reported the New York Sun. The national flag was displayed over the pulpit; ushers wore ribbons of red, white, and blue across their breasts; and the crowd sang patriotic songs such as the “Sword of Bunker Hill.” Various speakers condemned the recent removals of the Bible by various school boards, with several predicting it would lead to the demise of American civilization. “The cause of Bible-in-schools was evidently regarded as that of our national existence and religious liberty,” reported the Index. “[T]he bitterness of some of the speakers showed how dangerous already is the excitement of Protestant fanaticism.” There was little doubt, however, that any proposed school amendment would not receive serious consideration without addressing the issue of Bible reading.14 One of the casualties of the Democratic congressional victory in 1874 was the loss of the House Speaker’s chair by James G. Blaine. Blaine, now a common representative, had already set his sights on a higher prize: the 1876 Republican nomination for president. Unlike Grant, Blaine was considered a viable candidate. Quickly recognizing the political value of Grant’s proposal, Blaine made public a copy of a letter he had written to the chair of the Republican Party in Ohio, where Rutherford B. Hayes had just been reelected governor on an anti-Catholic platform. “The public school agitation in your late campaign is liable to break out elsewhere, and occurring first in one State and then in another, may keep the whole country in a ferment for years to come,” Blaine had written. “This inevitably arouses sectarian feelings and leads to that bitterest and most deplorable of all strifes, the strife between religious denominations. It seems to me that this question ought to be settled in some definite and comprehensive way, and the only settlement that can be final is the complete victory for non-sectarian schools.” As a lasting solution, Blaine proposed a new constitutional amendment, to wit:

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No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State, for the support of the public schools or derived from any public fund therefor, shall ever be under the control of any religious sect, nor shall any money so raised ever be divided between religious sects or denominations. Such an amendment, Blaine wrote, “would be comprehensive and conclusive, and would be fair alike to Protestant and Catholic, to Jew and Gentile, leaving the religious faith and the conscience of every man free and unmolested.” Following Grant’s address, Blaine submitted without comment his amendment to the House of Representatives on December 14. In addition to prohibiting the funding of parochial schools and the teaching of sectarian tenets in public schools, the proposed amendment included language making the First Amendment’s religion clauses applicable to the states. Consistent with his proposal in his earlier letter, Blaine’s proposed amendment did not address the issue of Bible reading.15 Public attitudes toward the proposed amendment varied widely. Protestants generally supported the measure while Catholics opposed it. The Methodist Zion’s Herald, which had called Grant’s proposal “clear, manly, and able,” urged support for Blaine’s amendment as a means of curbing the Catholic influence on school boards. The Independent, the Christian Union, and the Christian Advocate all voiced similar support for the proposed amendment as a solution to the growing controversy. Concern persisted, however, that the amendment might force local schools to discontinue with Bible reading and nonsectarian instruction.16 Lyman Atwater, the conservative editor of the Princeton Review, criticized Blaine’s amendment, claiming that it “requires that the schools be in the most absolute sense non-religious. . . . There is no middle ground between religion, or religious principle of some sort, and atheism. Neutrality here is out of the question. Not to acknowledge God is to disown or ignore him. It is to be ‘without God in the world,’ and this is atheism.” On the other extreme, the Index called Blaine’s proposal “inadequate” for not addressing the Bible reading issue and for playing into the hands of those who asserted that America was a Christian nation. It was “sufficiently evident that his ‘unsectarianism’ is a sham,” the Index wrote, “being simply Protestant as opposed to Catholic ‘sectarianism.’”17 As with Grant’s proposal, many people viewed Blaine’s amendment as a crass political maneuver designed to appeal to anti-Catholic voters. Not surprisingly, Catholic World condemned those “politicians who hope to ride into power by awakening the spirit of fanaticism and religious bigotry among us.” But the

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World’s criticism was joined by the Nation, which otherwise had no sympathy for Catholic funding requests. The Nation observed: Mr. Blaine did, indeed, bring forward at the opening of Congress a Constitutional amendment directed against the Catholics, but the anti-Catholic excitement was, as every one knows now, a mere flurry; and all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.18 James Blaine’s commitment to the issues surrounding the amendment are unclear. Nothing indicates that he had any abiding interest in the school question or nonsectarian education generally. In a campaign autobiography, Twenty Years of Congress (1884), Blaine made no reference to the amendment (even though that was the infamous campaign of “Rum, Romanism, and Rebellion”). His lack of concern for the religious aspects of his amendment is evident in his complete disregard for the proposal once he had lost the 1876 nomination. Blaine did not take part in any of the debates surrounding the amendment, even though he had ample opportunity to influence the measure in both chambers. The insignificance that Blaine assigned to his amendment is demonstrated by the lack of attention given to the measure by both contemporary and later biographers.19 Also, there is no evidence that Blaine had any personal animosity toward Catholics. On the contrary, his mother was Catholic and his daughters were educated in Catholic boarding schools. Two of his daughters later joined the Catholic Church, while a close cousin, Mother Angela Gillespie, was the founder of the Holy Cross Sisters. Later, as secretary of state, Blaine was known for his support of Irish home rule. Blaine claimed to be Presbyterian, but his religious commitment was nominal at best. Taken together, there is nothing to suggest that Blaine was anti-Catholic or that he sought to stoke anti-Catholic sentiment. He stated that he intended his amendment to remove the school issue from public controversy, though it is more likely that Blaine used it primarily for the political mileage. After the amendment failed to secure him the nomination, it also lost all importance as even a historical event.20 Although many observers approached the amendment with cynicism, others viewed it as an opportunity to end the religious divisiveness of the school question. Both the Republican New York Times and the Democratic New York Tribune supported the proposal as a way of diffusing the religious issue. “Thinking men of all parties see much more to deplore than to rejoice over, in the virulent outbreak of discussions concerning the churches and the schools, and welcome any means of removing the dangerous question from politics as speedily as possible,” wrote the Tribune. But resolving the school controversy

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meant more than simply nationalizing the no-funding principle, wrote St. Louis school superintendent William Torrey Harris in the Atlantic Monthly; it also required the elimination in the public schools of all Protestant preferences, including nonsectarian prayer and Bible reading. Catholic World concurred that the measure could be a way of diffusing religious conflict, provided that Catholics were allowed to apply their taxes toward parochial schools.21 Still others viewed the measure as part of a larger question about the future of American public schooling, that is, whether its character would be truly universal and religiously neutral. The Independent, the nation’s leading religious journal, published a series of articles throughout the spring of 1876 seeking to place the controversy within a broader context. The funding issue “manifestly does not cover the whole question in controversy,” wrote columnist Samuel Spear. Rather, the controversy “bring[s] to the surface the whole subject of Church and State, civil government and religion, in their relations to each other.” The fundamental issue was whether all Americans, be they Protestant, Catholic, or Jewish, were citizens entitled to equal regard under the Constitution: “All these people are citizens . . . [and t]he public school is the common property of the whole people,” Spear declared. “The objection, therefore, of the Catholic, the Jew, and the Infidel against any Protestant regime in the public school is a valid one, and admits no answer unless we abandon the fundamental principles of our republican system.” Spear insisted that the only solution was “a purely secular system of education.” As for civil government, it too was a secular institution, having no authority over religious matters.22 Education reformer William Torrey Harris concurred, asserting that any legislation must have the goal of “preserving the common school as a purely secular institution, without any religious instruction in it whatever.” This was the only solution consistent with the “constantly growing fact in modern history, the separation of church and state,” Harris wrote.23 An additional issue that fueled the debate was whether the amendment was the first step toward requiring states to provide universal schooling, possibly under the supervision of federal authorities. Blaine’s measure omitted such a requirement, as Grant had proposed, but that issue haunted the debate surrounding the amendment. The hallmark of Reconstruction had been the aggrandizement and centralization of authority in the federal government, and many hoped, while others feared, that the amendment would lead to federally mandated universal education. One southern newspaper charged that the Blaine Amendment was a “stupendous stride toward centralization [of education]” and would “turn over the children to be educated by the federal government.” The specter of racially integrated public schools also lurked in the background. Even the moderate Independent, which otherwise supported

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Blaine’s proposal and the notion of universal education, declared, “Whether a State shall have a public school system or not is purely and absolutely a State question . . . and it should be left to the sovereign discretion of every State.”24 These various issues—whether public schooling should be religious or secular and truly universal for all faiths, races, and nationalities; whether the national government should mandate schooling at the state or local levels; and how best to diffuse religious strife—colored the debate as much as the issues of parochial school funding and anti-Catholicism.25 For many people, these issues were interrelated. The fact that they were intertwined, however, does not mean that supporters were motivated chiefly to disadvantage Catholics by denying them a share of the public school funds. Despite the tendency of some participants to resort to inflamed rhetoric, many viewed the controversy in broader terms about the future of American education and religion in public life. The Blaine Amendment thus became the fulcrum of these distinct but interrelated issues. For many, the amendment simply represented a solution for the troubling school question, on both issues of funding and religious content. But the amendment also took on the much larger question of how to perpetuate American values and institutions in light of the pressures imposed by immigration, race, Reconstruction, urbanization, and industrialization. Closely related, the amendment served as a medium for exploring understandings of the separation of church and state. Public debate over the Blaine Amendment continued throughout the spring and into the summer. Democrats, who controlled the House of Representatives, were lukewarm on Blaine’s proposed amendment, not wanting to alienate their Catholic constituents. After initially deciding to table the amendment until after the November elections, the House leadership opted to bring the measure to the floor in early August with a proviso that the amendment would not “vest, enlarge, or diminish legislative power in the Congress.” This addendum allowed Democrats to vote for the measure while claiming that its provisions would carry no force. Despite Republican objections that the addendum would render the amendment meaningless, the House passed the resolution by an overwhelming vote of 180–7.26 In the Republican-controlled Senate, the Judiciary Committee omitted the House’s limiting language but attached its own addendum. After stating that “no particular creed or tenets shall be read or taught” in any public school, the resolution provided that “[t]his article shall not be construed to prohibit the reading of the Bible in any school or institution.” This clause was inserted as a result of the lobbying efforts of conservative Protestants who had assured the senators that the provision would “introduce no new feature into our education” nor “require the reading of the Bible” in the schools but would merely

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respect existing local practices. Committee members apparently were swayed by the argument, and the clause was incorporated into the final report.27 Even though the clause protecting Bible reading made the amendment more controversial, debate on the floor of the Senate focused primarily on issues of states’ rights to control education and the proposal’s ban on parochial school funding. Theodore Randolph (D-NJ) claimed that the amendment infringed on states’ autonomy in local educational matters: [T]here is not only no duty devolving upon the Federal Government, by reason of any provision in the Constitution, to directly care for the education of its citizens, but that the attempt upon the part of the Federal power to exercise authority in this direction would be without warrant, and as pernicious in precedent as it would finally become dangerous in practice.28 Several senators echoed Randolph’s concern that the amendment would usurp states’ authority over educational matters, with Senator Francis Kernan (D-NY) stating: “I believe that the matter of educating our children may be wisely left to the people of each State. I believe that it is a home right.” Democratic objections to the federalism issue were so great that the Republicans spent the bulk of their time responding to this charge.29 The second common point of debate was the partisan nature of the amendment. Both Grant and Blaine had claimed that the amendment would “take the religious issue out of politics.” Republicans adhered to this line, but few on the Senate floor believed that the Blaine Amendment depoliticized the school question.30 Senator Lewis Bogy (D-MO) called the amendment “a cloak for the most unworthy partisan motives” and charged that the Republicans were replacing the “bloody shirt” with unfounded fears of an imperial papacy. The Republican goal, Bogy asserted, “is to arouse feeling against the democratic party, and make it appear that it is dependent upon the support of the Catholics for success.” Even though Republicans asserted that the amendment benefited Protestants and Catholics alike, they were often unable to resist aligning their opponents with the Catholic Church, thereby substantiating the Democrats’ claim.31 Occasionally, the debate shifted to the specific issues of Bible reading in the schools or the nation’s religious character. Theodore Randolph seized on the apparent inconsistency in the amendment, which forbade religious instruction but guaranteed that Bible reading “shall not be prohibited in any school or institution.” Describing the two provisions as “a flat contradiction,” Randolph asked, “or is the Bible not a religious book? . . . Which edition shall it be, if the state assumes to designate one according to its ‘consciences?’”32

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Republicans lacked a good response to Randolph’s criticism and instead fell back on a nonsectarian argument. Speaking to the larger audience of public opinion, amendment sponsor Frederick Frelinghuysen (R-NJ) claimed that there was nothing in the amendment that prohibited religious instruction as distinguished from the teaching of particular creeds or tenets. However, Frelinghuysen also could not resist resorting to rhetoric about America’s Christian character: That pure and undefiled religion which appertains to the relationship and responsibility of man to God, and is readily distinguishable from the creeds of sects; that religion which permeates all our laws, which is recognized in every sentence against crime and immorality, which is invoked in every oath, which is reverentially deferred to every morning at that desk and on like occasions at the capitol of every State of the Union; . . . that religion which is our history, which is our unwritten as well as our written law, and which sustains the pillars of our liberty, is a very, very different thing from the particular creeds or tenets of either religionists or infidels. And this article places no unhallowed touch upon that religion. Thus, for Frelinghuysen, the amendment found justification in the nation’s religious character, which also authorized religious practices in the schools. Because Christianity “permeates all of our laws” and “sustains our liberty,” Bible reading could never be incompatible with public education. “I am for the broadest toleration,” Frelinghuysen stated, “but I would never agree to a constitutional amendment that would exclude from the schools the Bible.”33 Frelinghuysen’s comments were the only to assign a religious reason for protecting Bible reading; while the views of the other senators are unknown, no other lawmaker echoed his sentiments. A final topic of debate surrounded language in the proposed amendment that would have applied the First Amendment religion clauses to actions of local and state officials. Proponents argued that, aside from the funding issue, the provision was necessary to guarantee universal religious liberty. Senator Oliver Morton (R-IN) insisted that “an essential principle of American liberty” was that we shall have perfect freedom of religious worship, that there shall be no established church, no religion established by law. . . . [S]o far as states being left free to establish a church if they see proper or to establish denominational schools at public expense, I believe that the safety of this nation in the far future depends on their being deprived of any such power.34

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In raising this issue, Morton advanced a view of disestablishment that contrasted with that of his fellow Republican Frelinghuysen. Morton was bothered by the Bible reading provision though he stopped short of equating it with a prohibited establishment. He criticized those people who insisted that the United States was a “Protestant country” and that public schools “in which religion is not taught are infidel and wicked,” statements that could be construed as a snub to Frelinghuysen. Morton insisted that such arguments presented as great a danger to American liberty as the funding of Catholic schools. It is not known whether Morton was the only Republican troubled by the Bible reading provision, but he was the only one to state his concerns publicly.35 For all of its potential, the debate over the Blaine Amendment was not memorable. Aside from the brief exchanges between Frelinghuysen, Randolph, Kernan, and Morton, most senators showed little interest in the philosophical basis for the First Amendment. No one alluded to the nation’s religious founding nor to the religious piety of the founding fathers. The issue of what role government should have in promoting religion, and of which religion to promote, was barely considered. The issue of whether favorable treatment of Protestantism in the schools disadvantaged Catholics and Jews was never debated. Similarly, the question of what constitutes an establishment of religion was never explored, except through Senator Morton’s assertion that “the example of one State establishing a religion, or doing what amounts to the same thing in principle, establishing denominational schools to be supported at public expense, endangers the perpetuity of the nation.”36 In all likelihood, these issues were not debated because most senators viewed the amendment as a partisan measure. Also, most of the senators, Democrats and Republicans alike, likely shared a narrow view of disestablishment. The prohibition against establishing a religion, while considered broader than prohibiting a state church, did not necessarily extend to government patronage of nonsectarian religion, particularly where government funds were not involved. The oft-made distinction between religion and creeds was crucial. Preference of one denomination, sect, or creed was forbidden. But very likely, most legislators did not consider state sponsorship of generic religious observances to be prohibited under either the First Amendment or the proposed amendment under consideration. This consensus quickly broke down, however, whenever the issues became more precise, such as whether government had an affirmative obligation to protect or promote Christianity over other faiths. In the end, the Senate debate had no effect on the outcome of the amendment. The Senate voted 28–16 in favor of the amendment, with Republicans

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and Democrats voting along party lines. The final result was 4 votes shy of the two-thirds necessary for passage, and the proposal failed. The Bible reading clause, which had been so important to assuage evangelical concerns, had not been a crucial issue but had merely provided Democrats with an additional reason to vote against the measure.37 Conservative Protestants, who had come so close to pulling off a victory and inserting the recognition of the Bible in the Constitution, had lost. The significance of the amendment’s defeat and of the near-passage of the Bible reading clause was not lost on secularists. The Index, which only a week earlier had declared its support for the original version of the amendment, expressed both anger and relief over the episode. Instead of realizing the goal of religious equality, the amendment had been hijacked at the last minute and made into an instrument which, through its protection of public Bible reading, would have all but recognized Christianity as the national religion. Such “Machiavellian ingenuity,” wrote the Index, was “so extraordinary that nobody as yet seems to comprehend the real meaning or bearing of the measure we have so narrowly escaped.” Catholics, in contrast, saw the amendment’s defeat as a hollow victory, knowing that their battle for religious equality and respect would continue.38 Protestations aside, the battle over the Blaine Amendment had ended in a draw. Having been given the opportunity to resolve one of the headier issues of American constitutional law, Congress had reverted to partisan bickering. Congress’s inability or unwillingness to earnestly address the relationship between Christianity and civil society indicated the complexity of the issue as well as its amenability to political manipulation. Thoughtful consideration was unlikely with such a politically charged issue. But despite the inflamed rhetoric that frequently ruled the debate both inside and outside of the Capitol, a significant number of people saw the amendment as a lost opportunity to discuss the future of public education and church-state relationships. It would thus be shortsighted to characterize the Blaine Amendment as simply an episode in anti-Catholic bigotry. The most immediate effect of Congress’s failure to resolve the school question was that the matter reverted back to the states. There, the Blaine Amendment found its legacy, as over the next thirty-five years, twentyone states would adopt similar constitutional provisions or enact legislation prohibiting the funding of parochial schools. There is little doubt that the Blaine Amendment inspired several of these state measures, although others were modeled after earlier provisions from other state constitutions. What is less clear, and remains the subject of ongoing debate, is whether the same antiCatholic sentiments exhibited during the debate over the Blaine Amendment contributed to the other anti-funding provisions.39

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The Triumph of Nonsectarianism The Blaine Amendment, though significant as a political event, had little impact on the development of nonsectarianism as it related to either religious exercises or the public funding of religious institutions. The principle against funding parochial schools had been developing for seventy years and was already installed in the laws and constitutions of many states by the time of the Blaine Amendment. The amendment had not proposed a new solution to the funding controversy nor advanced a novel constitutional theorem on church and state, other than to nationalize the matter. In contrast, had the Senate version of the Blaine Amendment passed, it would have secured the Bible’s presence in the schools and, as the Index feared, placed a recognition of the Bible in the Constitution. That resolution would have invited additional conflict over whether “reading from the Bible” included the Catholic Douay version or encompassed its devotional versus ethical uses. Without these issues being resolved, it is unlikely that the Bible reading provision would have survived a conference committee with the Democratic-controlled House of Representatives. In any case, the amendment did not pass, and the Bible reading provision received little attention from the senators; no one volunteered his understanding—let alone Congress’s collective understanding—of what uses of the Bible should be permissible in the public schools. The debate over whether public schools should allow instruction in universal religious values or even brief usages of the Bible would continue long past the events of 1876.40 Over the final third of the century, state courts would hand down a score of decisions on the public funding of sectarian institutions, all affirming constitutional or statutory bars to religious school funding. Because of the already existing statutory and constitutional prohibitions on using school funds for religious schooling, few of the cases involved direct challenges to the nofunding principle.41 In one line of cases, courts applied laws that restricted public appropriations to institutions under public control—which parochial schools were not—thereby relieving judges from considering whether public funding of religious schools violated church-state principles.42 The other body of cases involved appropriations to orphanages run by churches and religious organizations. As mentioned above, in 1867 a New York court had held that a Catholic orphanage was entitled to receive public funding for the care of its residents, so long as the funds did not come from the state’s school fund. For the remainder of the century, New York courts applied this distinction despite the adoption of a comprehensive constitutional provision in 1894 prohibiting the use of “any public money . . . directly or indirectly, in aid or maintenance . . . of any

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school or institution of learning” under the control of a denomination. This distinction presented a few difficult calls when the institution was engaged in both education and care. New York courts generally looked to the source of funding—school funds versus state charitable aid—and whether the institution undertook roles beyond that of a school. In one case, the New York Court of Appeals held that, even though the St. Mary’s Orphan Asylum provided education as well as shelter, it was “neither a school nor institution of learning,” and “hence it would seem to be plain that the prohibition contained in the [constitution] has no application.” The court’s holding also reflected an effort to reconcile the state constitution’s no-funding provision with a separate provision that authorized public funding for the “care, support, maintenance and secular education of inmates of orphan asylums . . . whether under public or private control.”43 The constitutions of most states lacked similar conflicting language. Even then, other state courts generally declined to follow New York’s technical distinction between education and care, holding that religious orphanages were sectarian institutions ineligible to receive public funding, regardless of the source. The object of constitutional disestablishment was “to keep all sectarian instruction from the schools,” the Nevada Supreme Court wrote in 1882. But the court noted that the Nevada Constitution prohibited more, barring the use of public funds for any sectarian use. The reason for this provision was that “[p]eople of nearly all nationalities and many religious beliefs established our state. They met on common ground, and in the most solemn manner agreed that no sect should be supported or built up by the use of public funds. It is a wise provision and must be upheld.”44 For the remainder of the century, Catholic officials persisted with their criticism of the no-funding rule and their efforts to secure alternative means of funding; however, the constitutional die had been cast. Outside of the Catholic community, few would question the propriety of the no-funding principle until the U.S. Supreme Court entered the fray in 1947. Nonsectarianism, too, continued as the justification for Bible reading and, less frequently, for devotional religious instruction in the public schools. The level and religious intensity of the exercises varied greatly from town to town, but in all instances supporters claimed that the programs were nonsectarian and generally nondevotional. All people understood there were outer boundaries to the concept when the exercises crossed the line into denominationalism. In one of the few cases to confront this problem, a Pennsylvania trial court in 1895 enjoined a public school principal from leading religious exercises with his students—Bible reading, Bible memory drills, hymn singing—that were “according to the form of worship usually followed in the Methodist Episcopal Church.”

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It was “too plain for argument,” the court wrote, “that denominational religious exercises and instruction in sectarian doctrine have no place in our system of common school education.”45 The court’s decision left school officials in a quandary as to what practices were permissible. The school board secured an additional hearing, seeking clarification of whether the Bible could be read without note or comment in the classrooms. After an unexplained hiatus of three years, a different judge issued a strong decision supporting Bible reading. “The Bible is not a sectarian book,” the court wrote. To assert that any version is sectarian “borders on sacrilege.” But, again offering limited direction, the court opined that the “reading of the Bible in the public schools may also be allowed, and even commended, from a standpoint which does not involve the question of sectarian instruction nor the rights of conscience [of children].” In essence, the Bible was not sectarian, and its use was allowed provided it did not amount to sectarian instruction. Apparently, Bible reading without note or comment was nonsectarian, denominational catechisms were sectarian. Between these two extremes lay a fair amount of activity, such as instruction in universal religious values, practices which likely varied according to the inclinations of local officials.46 Uncertainty over what practices were permissible helped to accelerate the evolution of nonsectarianism throughout the final quarter of the century. This transformation was spurred on not only by the Minor decision but also by increasing pressure from educators to professionalize and standardize the public schools. Most public schools followed Mann’s model of unmediated Bible reading for the purpose of teaching moral values, if not for instilling religious devotion. Mann’s system was at tension with itself, however, as it sanctioned only as much religion as was necessary to implant devotion and morality. That line was difficult for most educators to identify; a much simpler approach was to find alternate ways to teach morality and values. Mann’s emphasis on universality and inclusion also led some to question the inconsistency in justifying unmediated Bible reading on the basis of a religious pluralism that included an increasing number of non-Protestants. During the Cincinnati Bible controversy, Protestant leaders Henry Ward Beecher and Samuel Spear had called for abolishing all Bible reading, based on the religious conscience claims of Catholic parents, among others. Both religious leaders had also questioned the religious utility of the rote Bible reading that had evolved under Mann’s system, an increasingly common complaint.47 The mantle for reforming nonsectarianism was picked up by William Torrey Harris, who served first as superintendent of the St. Louis schools and then, from 1889 to 1906, as U.S. commissioner of education. During Harris’s tenure as superintendent, the St. Louis schools, with their large German Catholic enrollment, had banned daily Bible reading. In an 1876 article written during

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the Blaine Amendment controversy, Harris urged the abolition of Bible reading as a way of diffusing religious conflict while preserving public education. The “incompatibility between religious instruction and secular instruction, and the advantage of separating the two for the highest perfection of each” demanded the establishment of the “secular school,” Harris insisted. Later, as commissioner of education, Harris became the leading spokesperson for eliminating Bible reading even without note or comment. “The reading of the Bible, the offering of prayers, and the teaching of some simple catechism, are devices borrowed from some particular forms of Protestantism,” Harris insisted. “[I]t is impossible to have any such unsectarian religion that is not regarded as sectarian by the more earnest religious denominations.” For Harris, nonsectarianism was a practical impossibility.48 Harris’s calls foretold a growing trend during the last quarter of the nineteenth century. An increasing number of school boards in northeastern and midwestern cities abolished all uses of the Bible or required that the readings be accomplished without note or comment. In 1881, Rochester, New York, bishop B. J. McQuaid observed sardonically that New York had made “great progress in the eliminating of every shade and semblance of religious instruction and usages from its common schools.” If the Bible were read at all, it occurred “in a very perfunctory way.” McQuaid attributed the change not only to creeping secularism but also to “[r]adical changes in methods of school management [which] leave us to-day without instruction in the simplest truths of Christianity—without the most elementary code of morals, on a foundation of Christian authority.”49 Not only did religious exercises decline; increasingly, the underlying assumption about the duty of public schools to inculcate religiously based moral values was being questioned. Some reformers argued that moral instruction was the duty of parents and churches, while others insisted that moral education could be taught provided it was divorced completely from religious instruction. Religious liberal Samuel Spear called for a “purely secular system of education,” one that taught a “secular morality—a morality that has its basis in the natural dictates of conscience and its direct sphere in the relations and actualities of the present life.” William Torrey Harris also argued that moral instruction could take place apart from any reliance on religion: “Public School education is moral and completely so, on its own basis . . . but it is not a substitute for religion.” These arguments, also promoted by secularists and freethinkers, initiated a debate over moral education that would ensue for the remainder of the century and into the next.50 The arguments of Harris and other reformers produced a backlash from the National Education Association and other education groups that disputed

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that morals could be taught without a religious reference point. One college educator told the Oregon State Teachers’ Association in 1884 that there “must be a religious basis to our educational system; an acknowledgment of our religious obligations, and the natural and common presentation of incentives to piety, must have a place in the common school, or it utterly fails in its mission.” Like many educators, the speaker believed that this could still take place without “involv[ing] either cant or sectarianism.” Many Protestant clergy also disputed the possibility of drawing a secularizing line around moral instruction. “[M]oral education is indispensable” for a democracy, wrote Lyman Abbott, and it “is [not] possible to give such moral instruction and training without involving something of the religious spirit, if not religious education.”51 The perception that Bible reading and moral instruction were under attack intensified in the 1880s and 1890s. A survey conducted by the Woman’s Christian Temperance Union in 1887 revealed that the Bible was not being read in schools in 175 counties out of 254 reporting. The report indicated that, in other school districts, the Bible was “not so generally read as formally.” These findings were substantiated by the conservative National Reform Association, which reported that in Chicago, St. Louis, San Francisco, Rochester, Cincinnati, and “a multitude of smaller places, the reading of the Bible and all religious exercises have been prohibited. . . . [U]nless the apparent tendency can be arrested, the secular or atheistic theory of education will yet triumph in all parts of the land.” The status of Bible reading in the closing decades of the nineteenth century was likely not that dire; yet the perception of decline was as important as the reality. Religious conservatives condemned not only the Bible’s removal but also its rote use without note or comment, which increasingly was the norm. Either situation was a cause of alarm and a reason for action.52 In 1888, religious conservatives approached a close ally in Congress, Senator Henry William Blair, to champion their cause. Blair, a New Hampshire Republican and devout Methodist, had long advocated moral legislation supporting temperance and Sunday church attendance and opposing divorce. Blair was also concerned about the school question and had supported the Blaine Amendment as a member of the House of Representatives. Blair assumed leadership of the school question in Congress in the early 1880s after his election to the Senate. Unlike James Blaine’s transitory political interest in the issue, Blair was fully committed to defending the Protestant public schools against all attacks. For Blair, public education was the best guarantor of republican (and Republican) government and Protestant hegemony. The threat to American government lay in the uneducated and illiterate who were “the prey of the demagogue”—a veiled reference to the Catholic Church—which Blair claimed held “the balance of power in every state in the nation at large.” Between

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1881 and 1890, Blair tirelessly advanced a bill to provide federal funding for nonsectarian schooling in the states, a measure he saw as a stopgap against both secularization and Catholic schooling.53 Now, in collaboration with several religious groups, Blair introduced a proposed constitutional amendment that combined parts of his stalled funding bill and the Blaine Amendment. The proposed amendment began with a provision imposing the establishment and free exercise clauses on the states. The next provision required each state to “establish and maintain a system of free public schools” for all children between six and sixteen (which would have included black children) to educate them in the “common branches of knowledge, and in virtue, morality, and the principles of the Christian religion.” The proposal went on to prohibit the public funding of a school or institution which engaged in instruction or training in the doctrines, tenets, or beliefs particular to any sect or denomination. In a weak gesture of evenhandedness, a final provision prohibited instruction in “particular doctrines, tenets, belief[s], ceremonials, or observances” in any public school. When the latter provision was read in conjunction with the requirement that schools teach “virtue, morality, and the principles of the Christian religion,” however, the amendment left no doubt that nonsectarian religious instruction, not simply rote readings of the Bible, would become the national standard.54 For two days in February 1889, Blair held hearings before his Committee on Education and Labor. As chair of the committee, Blair ensured that a majority of the witnesses supported the amendment. Representatives from the National Reform Association (NRA) and the Evangelical Alliance, as well as several Protestant ministers, pointed to the Minor decision and the exclusion of Bible reading in New York, Chicago, and St. Louis schools as compelling reasons for the amendment. The witnesses concurred that nonsectarianism had gone too far. The Bible “has been read and the general principles of morality and of the Christian religion have been inculcated in the American common school from the beginning of its history,” the NRA’s T. P. Stevenson asserted. But that long-standing practice was now under attack. By characterizing the issue this way, the witnesses claimed that they were not attempting to impose a new practice but merely to halt unwarranted secularization: “we are seeking no change; [w]e are resisting a change which amounts to a revolution.” Not only should the Bible be read in the public schools, Stevenson continued, but Christian teachers “should inculcate the general [Christian] principles which have been regarded in the framework of our Government.” Stevenson, like the other witnesses, interpreted the language of the proposed amendment to allow for Protestant instruction, provided the teachings did not track the tenets of any particular denomination.55

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The hearing also provided an opportunity for the witnesses and committee members to chastise the enemies of public education: the Catholic Church and secularists. Witnesses asserted that the current sad state of Bible reading was due to “a combination between liberalism and Catholicism.” An equal threat to public education came from the Catholic Church’s designs on a share of the school fund for its parochial schools. Stevenson and others criticized the tendency to compromise on Bible reading to appease Catholic complaints: “the secularization of the schools will bring us no advantage in our efforts to withstand the division of the school funds among the sects.” The answer, as provided through the proposed amendment, was to guarantee that the public schools remained distinctly Christian (i.e., Protestant), while ensuring that no money could ever go to Catholic education.56 The state of Bible reading was but symptomatic of the greater threats to Protestant culture, and the hearings allowed the religious conservatives to express their views of the proper relation between church and state. The Reverend James King of the Evangelical Alliance argued that the public schools should advance Christian values because the nation was Christian according to law and tradition. King cited statements by Joseph Story, James Kent, and other jurists who had argued that Christianity was incorporated into the law and served as the basis of republican government.57 Stevenson, whose organization supported an amendment to the Constitution to recognize the lordship of God and Jesus, readily concurred: “Our institutions bear broad and deep the impress of the Christian religion. The morality which is enforced by our laws is Christian morality. The offense[s] which we restrain and prohibit by law throughout the nation are offenses under the moral standards of the Christian religion.” Based on this same foundation, the public schools should be distinctly Christian: “If there is any sense in which we are a Christian nation, and in which this is a Christian Government, [then] in the same sense and to the same extent our schools ought to be Christian.” Securing devotional Bible reading was part of a larger agenda that included state enforcement of blasphemy laws, Sunday laws, and other “laws for the defense of social purity” according to a Christian standard. Unquestionably, the religious conservatives sensed that the culture and its institutions were becoming secular, and alarmingly so.58 In the end, Blair’s amendment fared no better than his education funding bills. Even though Blair chaired the committee, his proposal was never brought up for a vote. Southern Democrats opposed the bill based on their resistance to any federal role in the operation of state-run public schools. Also, the Catholic hierarchy, with its political influence among northern Democrats, fiercely opposed the amendment for its ban on funding parochial schools and its promise of increased Protestant dominance over the public schools.59 A more

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modest measure to counteract the secularization of public education might have attracted greater legislative support. But Blair’s proposal represented a step back from current understandings of nonsectarian education. Despite proponents’ claims that they were “seeking no change,” the amendment would have constitutionalized a pre-Mann view of allowable religious practices. Many people may have disagreed with the trend, but few wanted a return to the days of instruction in Calvinist tenets.60 Defeat was also attributable to the work of the Religious Liberty Association, an agency of the Seventh-day Adventist Church. The association was formed to battle the amendment and the companion Blair Sunday-Rest Bill, which would have mandated a national Sunday law (discussed in chapter 10). Led by the Reverend Alonzo T. Jones, who testified in both hearings, the association worked feverishly against the proposals by issuing pamphlets, holding rallies, and mounting petition drives. The association gathered over 230,000 signatures on a petition against the school amendment, even though the denomination had less than 100,000 members at that time. Facing such odds, the amendment died in committee.61 The failure of the Blair education amendment highlighted the general frustration that conservative Protestants faced over the decline in Bible reading. As much as they attributed the cause to a cabal of Catholics, Jews, and secularists, all knew that the reasons were much more multifarious and systemic. Pressures to make public education professional, academically rigorous, and accessible to children from an increasing variety of backgrounds meant that potentially divisive religious issues had no place in the schools. Also, Protestants could not agree on the issue of Bible reading. A growing number of moderate Protestants supported pro forma exercises or their complete abolition. Others believed that the Bible could be retained by emphasizing the literary, historical, or even scientific aspects of the text: “The literary and historical study of the Bible . . . [can] be taught purely from the standpoint of objective science,” insisted one Bible scholar. Still others resisted compromise if the Bible would be used only when its spiritual aspects were deemphasized: “The use of the Bible in the public schools should be devotional, not academic.” Traditionalists clung to the belief that there “are great fundamental religious principles which are tacitly admitted by all Christian people, Romanists as well as Protestants.”62 This division among Protestants meant there was no consensus for how to stem the secularizing trend. “The fact that the Bible is generally excluded from the public schools of the United States, where it was used as a book of devotion and instruction, is not to be attributed to a growing disregard for religion,” summed up an editorial in Biblical World. “This situation had been created by the friends of the Bible rather than its enemies; for if the friends of the Bible could have agreed among themselves as to how the Bible should have been

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taught in the schools, their influence would have secured the continuance of such instruction.” As evidence of how intractable was the issue, Biblical World reaffirmed that “[r]eligion and morality are primary features in a true education.” But, the editorial continued, “if the Bible were again to be taught in the schools as it was formally taught, the same objections would arise.” In order to restore the Bible, it had to be taught “the right way,” relying on the “best modern science of religious and ethical teaching,” which would recognize “true Christianity wherever it exists” and be “able to distinguish between essentials and nonessentials.”63 It was but one more proposed solution to an intractable problem.

Legal Responses Pressure to secularize public education, coupled with the absence of a uniform Protestant response, meant that Bible reading would continue to decline through the last decade of the century and into the next. Federal education commissioner William Torrey Harris summarized the situation in an 1895 government report: [Outside] New England there is no considerable area where [the Bible’s] use can be said to be uniform. This condition has come about as much by indifference as by opposition. . . . There has been a change in public sentiment gradually growing toward complete secularization of the Government and its institutions. . . . Secularization of the schools is accepted or urged by many devout people who deem that [this is] safer than to trust others with the interpretation of the laws of conscience.64 Despite this trend, Bible reading, in one form or another, remained common in many rural areas and in religiously homogeneous communities with small or politically powerless immigrant populations. When accommodation with religious dissenters was unavailing, lawsuits sometimes ensued. Between 1876 and 1900, courts in Illinois (1880), Iowa (1884), Pennsylvania (1885, 1898), and Michigan (1898) declined to follow the Minor court and upheld religious exercises on grounds they were nonsectarian. These “nonsectarian” exercises varied from reading extracts from the King James Bible in the Illinois and Michigan cases to Bible reading, Protestant hymn singing, and the recitation of the Lord’s Prayer in Iowa. Neither the Illinois nor the Iowa court examined the religious content of the exercises, deferring instead to the authority of local school boards to adopt rules for governing their schools.65 In its case, the

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Michigan court acknowledged a religious purpose for the book Readings from the Bible, but noted it was “intended merely to inculcate good morals” by “emphasizing the moral obligations laid down in the Ten Commandments” and not to instruct in religion. The latter goal, the court surmised, would violate the state’s constitution. Significant for all courts was the fact that each school had allowed dissenting students to be excused from participating in the exercises. Even though excusals were fundamentally at odds with the claimed universality of nonsectarian moral instruction, such policies made good legal sense, as they undermined plaintiffs’ claims of religious coercion. This allowed the Iowa court to chastise the plaintiff for being “a propagandist . . . charged with a mission to destroy the influence of the Bible.” But the Iowa court did not defend the Bible for its inspirational qualities. Rather, removing the Bible from the schools “would resort in unseemly controversies” that would “disturb the harmony of the schools” and “impair the[ir] efficiency.” For these courts, nonsectarian Bible reading was not practiced for a religious purpose.66 In contrast to the Illinois, Iowa, and Michigan decisions, which identified secular rationales for the “nonsectarian” exercises, the Pennsylvania decision in Hart v. School District of Sharpsville (1885) can fairly be viewed as a rejoinder to Minor and the legal secularization of Bible reading. There, Catholic parents in Sharpsville, Pennsylvania, objected to the daily reading from the King James Bible and the singing of Protestant hymns in their local public school. Brushing aside the parents’ complaints, Judge S. S. Mehard held that there was no evidence “to warrant the conclusion that the King James version of the Bible is sectarian.” Based on the school district’s assurances that the exercises were nonsectarian and that objecting students were excused from participating, Judge Mehard concluded that nothing “could be inferred that [the practices] tend to teach the distinctive doctrine of one religious sect or to condemn that of another.”67 Up to this point, Judge Mehard’s opinion tracked the accepted nonsectarian formula. Yet unlike Illinois, Iowa, and Michigan, Pennsylvania had a body of case law that Mehard could not ignore, or at least resist embracing. Citing the antebellum blasphemy and Sunday law holdings of Updegraph and Wolf, he noted that “many decisions of our Supreme Court [recognize] that Christianity is part of the common law of Pennsylvania.” The prevailing religion in the state “is now and has been Christianity,” Mehard declared, and any inspection of “the laws and institutions of the State shows that the moral sentiment from which they spring and on which they are based, is that generated by the Christian religion.” Since the founders of the state had deemed religious belief to be necessary for “the proper management of civil affairs,” then there could be no objection to using the Bible to inculcate those morals that were “necessary for

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the support of the laws and institutions of the State.” For Mehard, the maxim justified, if not obligated, the devotional use of the Bible in the schools. In the end, Mehard found the exercises to be nonsectarian, but the fact that he raised the maxim indicates his concern with the secularizing trend and a desire to anchor the practices back on their religious foundation.68 After Hart, only one other case upheld Bible reading in schools on religious grounds. As with that earlier decision, the judge in Stevenson v. Hanyon (1898) struggled to reconcile nonsectarian Bible reading with its vanishing religious foundation (the case followed a highly publicized decision of the Wisconsin Supreme Court striking down Bible reading in the schools). Because the case also arose in Pennsylvania, Judge Edwards had to deal with the old precedent declaring Christianity to be part of the law. Edwards embraced the maxim, writing that, because Christianity occupied a unique position in the history and laws of Pennsylvania, “can it be said for a moment that the reading of the Bible in the public schools, without comment, is sectarian instruction, or that such an act violates the rights of conscience or is in derogation of any constitutional principle? We decidedly think not.” As with Hart, the religious rhetoric in Stevenson was unnecessary to resolve the case; the court also found Bible reading without note or comment to be nonsectarian. But, like Judge Mehard before him, Judge Edwards longed for a clearer religious justification for the religious practices. Neither judge was willing to surrender to the secularizing trend, but both knew that because religious rationales were no longer acceptable, they had to couch their holdings in terms of nonsectarianism. Possibly, both judges perceived that, in order to preserve any significance to Bible reading, it could not be treated as a secular enterprise. Otherwise, its use would be hollow, perfunctory, and eventually unnecessary. Many conservative clergy feared the same. In the end, such rationales were going against the grain, and both decisions remained exceptions to the way courts were addressing the issue.69 In the seventeen years following Minor, courts had rejected challenges to school religious exercises, deferring to school boards’ characterizations of their practices as not only nonsectarian but as accomplishing secular goals. This had led to some strained holdings, such as the 1884 Iowa decision upholding not only Bible reading but prayer and Protestant hymn singing.70 Eventually, the underlying principles of universality and noncoercion led courts to question the propriety of any form of religious exercise in the public schools. In 1890, a second court struck down religious practices in the public schools. Unlike the Cincinnati case, however, this ruling was more sweeping, with the court holding that nonsectarian Bible reading was inherently sectarian and thus unconstitutional. At the same time, the court expressly repudiated a religious justification for Bible reading in the schools. The case,

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Weiss v. District Board of School District No. 8, was a watershed in nineteenthcentury church-state law and significantly impacted public and judicial attitudes toward nonsectarianism.71 Weiss began in 1889 when Catholic parents in Edgerton, Wisconsin, sued the local school district to halt the daily readings from the King James Bible. As was now the predominant practice, the readings were conducted without commentary and dissenting children were excused from the classroom during the readings. Losing their challenge at trial, the parents appealed to the Wisconsin Supreme Court, claiming that the readings amounted to sectarian religious instruction prohibited under the state’s constitution. A unanimous court agreed with the parents, throwing out the practice. “[W]e cannot doubt,” Justice William Penn Lyon wrote for the court, “that the use of the Bible as a text-book in the public schools, and the stated reading thereof in such schools, without restriction, ‘has a tendency to inculcate sectarian ideas.’” The court ordered the school district to halt the exercises and in so doing turned Wisconsin into the first state to outlaw religious instruction in all of its public schools.72 The initial difference between the Weiss decision and the earlier Bible reading cases was the Wisconsin court’s willingness to scrutinize the manner in which the Bible was being used in the schools, rather than simply deferring to the pronouncements of school authorities that the practices were “nonsectarian.” Justice Lyon agreed that portions of the Bible that acknowledged a Supreme Being and addressed universal sentiments of love and goodness were likely not sectarian. But Lyon insisted that the court had to consider the entire Bible, including those “numerous doctrinal passages, upon some of which the peculiar creed of almost every religious sect is based.” Any pupil who listened to readings from these passages would be “more or less instructed thereby in the doctrines of the divinity of Jesus Christ, the eternal punishment of the wicked,” and other sectarian tenets upon which denominations disagreed. The court held that, because of these sectarian portions and the potential for the Bible’s use in a sectarian manner, it could not sanction such readings without effectively holding that the “conscientious scruples” of Catholic and Jewish parents were “entitled to no consideration.”73 By finding that the Bible was inherently sectarian, the Wisconsin court did not simply validate long-standing Catholic charges about the bias of the King James version; it refuted core Protestant assumptions about the Bible’s universality and perspicuity. All interpretations of biblical passages were now open to claims of denominationalism or sectarianism. And if the Bible was inherently sectarian, then nonsectarianism was a misnomer, or at least impossible to achieve so long as the concept relied on religious texts. The court’s refutation of nonsectarianism was the natural outgrowth of the doubts raised in Minor

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about the universality of religious exercises. Still, with the secularization that had taken place within nonsectarianism over the previous two decades, the Wisconsin court’s ruling appeared to be more groundbreaking. Other flaws in the nonsectarian argument troubled the Wisconsin Supreme Court, including the apparent inconsistency in excusing those students who objected to the “universal” exercises from participating in the practices. Forcing a child to profess his “apparent hostility to the Bible which a majority of the pupils have been taught to revere” would subject him “to reproach and insult” by his classmates. Beyond being internally inconsistent, the excusal policy was completely ineffective, Lyon wrote; the religious practices “tend[ed] to destroy the equality of the pupils which the constitution seeks to establish and protect.” Here, for the first time, a court acknowledged the inherent, subtle pressures on schoolchildren when faced with the Hobson’s choice of publicly stating their disapproval of the prevailing religious ethos. By establishing this principle as a constitutional norm, the Weiss court laid the groundwork for the later holdings of the U.S. Supreme Court that evidence of actual coercion of religious belief is not necessary for proving an establishment clause violation.74 Leaving no stone unturned, the Wisconsin court also rejected arguments that the religious practices were justified because of the legal status of Christianity. In defense of Bible reading, the school district had argued that Christianity had been incorporated into the Northwest Ordinance of 1787 and the Wisconsin Constitution and was thus part of the common law. Justice Lyon brushed aside those claims, declaring that “[n]one of these matters are material or pertinent to the questions to be decided on this appeal.” Lyon wrote that, instead of relying on antiquated maxims, the case should be decided under the constitution and laws “now in force,” which prohibit religious preference or favoritism to any religion.75 Further evidence of how far the maxim had fallen came in a concurrence by Justice John B. Cassoday, which went beyond Lyon’s summary rebuff to expressly refute the district’s Christian-nation argument. Cassoday wrote that it was “wholly inaccurate” to claim that “one religion is part of our law, and all others only tolerated.” Regardless of the declaration in the Northwest Ordinance, neither the constitution nor the common law recognized any religion or created legal disabilities on account of religious beliefs. Rather than establishing Wisconsin as a Christian state, Cassoday wrote, the state constitution guaranteed full equality among religions and served as a “perpetual bar” on the state giving legal preference to any religion or mode of worship. Bible reading in the schools afforded such a preference to Christianity and was accordingly invalid. For Cassoday, not only was the maxim spurious, it contradicted the principles of religious equality enshrined in the state’s constitution, which prohibited a “union, directly or indirectly, between church and state.”76

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With the Weiss decision, Minor ceased to be an isolated holding. Claims could no longer be made that Minor stood alone against the weight of legal opinion. But whereas Minor had held that schools were under no constitutional obligation to conduct religious exercises, the Weiss court had taken the next step by holding that Bible reading in schools violated constitutional notions of religious equality and nonpreference. Consistent with Minor, Weiss had disputed the concept of nonsectarian religious instruction. In a nation with an increasingly diverse religious population, it was becoming impossible to identify common religious principles upon which all people could agree. Despite the secular justifications for Bible reading that had developed since midcentury, the practice was not only religious but sectarian. Significantly, the sectarian quality of the exercises was viewed from the perspective of the objector, not the religious majority. Finally, the Weiss decision, like the Minor decision before it, flatly denied that the maxim held any legal significance, even if it only meant that the state was empowered to promote universal Christianity in the public schools. Not only was the maxim a legal anachronism, it conflicted with constitutional principles of religious equality. The Weiss decision, therefore, held that the maxim and nonsectarian instruction were inconsistent with notions of disestablishment. The maxim and nonsectarian instruction had to give way. Immediate reaction to Weiss was subdued, despite the significance of the decision. The New York Times characterized the case as merely another episode in the ongoing battle between Catholic parents and those “Protestant zealots who wish to convert the public schools into instruments of proselytism.” The statement indicated how the Times’s position on nonsectarian exercises had evolved in the fifteen years since the Blaine Amendment controversy. Now, the Times embraced the Wisconsin court’s reasoning, writing that the only plausible conclusion was “that the reading of the Bible is ‘sectarian instruction.’” Only by accepting this solution could “the common school system . . . be maintained in its integrity,” the Times editorialized; it was “a doctrine that will commend itself to all Americans who do not permit their sectarian zeal to interfere with their duties of good government.”77 Yet the Weiss decision was too sweeping to escape unscathed, and several Protestant groups shortly condemned the holding. Meeting in New York City three weeks following the decision, the Northern Methodist Church, increasingly uncertain about its position on public school Bible reading, adopted a resolution condemning the Wisconsin court’s holding as “un-American and pagan” and as creating “a menace to the perpetuity of our institutions.” The Methodist resolution asserted that Bible reading was justified because America was historically and legally a “Christian nation,” and then repeated for good measure that “Christianity is part of the common law of the State.” Secular

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education was inconsistent with “a land whose literature, history, and laws are the product of a Christian civilization.” The Methodist resolution, pushed by traditionalists, caught many prominent Methodists by surprise; several church leaders privately expressed their chagrin over the resolution to the newspapers. Yet private reservations among religious leaders over the wisdom of Bible reading did not stop public displays of outrage. A month following the Methodist meeting, a Presbyterian conference in Saratoga, New York, adopted a similar resolution condemning the Weiss decision.78 Aside from a handful of church resolutions and editorials, the Weiss decision did not produce the outcry that would have occurred thirty years earlier. One exchange indicates how far understandings of disestablishment had progressed by that time. Following the Methodist meeting, a New York Times editorial criticized the church resolution for relying on the court dictum declaring Christianity to be part of the common law. Calling the maxim “either meaningless or irrelevant,” the editorial insisted that courts could not enforce religious doctrine any more than they could punish people for failing to love their neighbors. The Times editorial elicited a response from historian John Jay who, after tracing the decisions of Vidal, Ruggles, Updegraph, and Chandler, asserted that there could be “no doubt . . . that Christianity is a part of American law.”79 Unwilling to let the matter rest, the Times wrote a second editorial, this one more critical of the maxim and its supporters. Mincing few words, the editorial charged that religious “zealots” were advancing the claim that Christianity was part of the common law to “enforce the[ir] demand that religious instruction should be given in the public schools”: But how does it help us in considering whether the common schools shall give religious instruction to be told that Christianity is part of the law of the land? No law book lays down what the Christian doctrines are in which courts have a judicial belief, or what doctrines are essential and what [are] unessential. The Times asserted that the phrase was so vague that even those judges “who have delivered the doctrine have been compelled to generalize [its meaning].” To claim “that Christianity is part of the law of the land is idle, meaningless, and exasperating,” the editorial asserted. The only solution was for the schools to be truly secular.80 The Wisconsin decision, aside from its symbolic significance, had little immediate impact on Bible reading controversies in other states. By this time, Bible reading supporters had only one option: to emphasize the secular purposes and qualities of the nonsectarian exercises; falling back on religious justifications was not realistic. Initially, other courts found that nonsectarianism

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was still a viable principle. Following Weiss, an Ohio trial court in 1894 upheld a local school board policy requiring a brief reading of the Bible as part of a daily opening exercise. Finding the practice to be nonsectarian, the court read Minor narrowly as holding that school boards had exclusive authority to determine the contents of their curriculums. The court offered no complementary religious rationale for the practice; it simply disagreed with the Weiss court that Bible reading was necessarily sectarian.81 The extent to which courts now insisted that Bible reading be supported by secular rationales is illustrated by the 1898 Michigan case of Pfeiffer v. Board of Education. In Pfeiffer, a divided Michigan Supreme Court upheld the Detroit public schools’ use of a reading book, Readings from the Bible, which the record described as being composed “almost entirely of extracts from the Bible, emphasizing the moral precepts of the Ten Commandments.” Because the book excluded sectarian passages and was used “merely to inculcate good morals” and a sense of citizenship among the students, the court majority found that the readings were nonsectarian within the requirements of the state’s constitution.82 Despite this holding, the decision in Pfeiffer was closer to Weiss for the way in which the Michigan court qualified its ruling. The court minimized the religious nature of the readings, focusing instead on the book’s overall purpose of inculcating virtue and citizenship. Even though the court approved a limited use of scriptural material, it made clear that its holding did not authorize religious instruction. Also, as the Weiss court had done, Justice Robert M. Montgomery rejected claims that the Northwest Ordinance required Christianity to be taught in the schools. The obligation to encourage “religion, morality and knowledge” was to be read “in light of the fact that this was at that date a Christian nation.” Now, Montgomery insisted, that language only prohibited the state from “exclud[ing] wholly from the school all reference to the Bible,” nothing more.83 One justice believed that the court majority had not gone far enough in responding to the Christian-nation argument. In a lengthy dissent, Justice Joseph B. Moore criticized the school district for raising the argument. Any preference for Christianity previously afforded under the law could not stand because “[t]he history of the relations of religion and the state shows a continuous evolution.” Quoting extensively from Minor and Weiss, Moore declared that the school’s argument would lead to religious inequality and oppression. There could never be complete religious liberty, Moore wrote, “where any one sect is favored by the state, and given an advantage by law over other sects.” Moore acknowledged that the exercises were far less religious than had been the earlier practice; however, the nation had changed both in attitudes and demographics. “The elements of our population are so diverse . . . that no system of

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religion can be taught which would not be objectionable to many of them.” In Moore’s view, any form of devotional reading necessarily resulted in religious favoritism. Not only was the state under no obligation to teach religion, to do so would violate principles of religious equality enshrined in the constitution.84 Montgomery’s and Moore’s opinions highlight the evolution in the legal debate over religious exercises. All of the justices in Pfeiffer embraced a narrow view of nonsectarianism and rejected arguments that schools were obligated to teach religion. No justice offered a religious justification for the readings nor advocated that more religion should be taught in the schools; even the majority opinion suggested that to do so would raise constitutional problems. Most significant, all of the justices rejected claims that Christianity was entitled to preferential treatment. The point of departure among the justices was whether this reading book—mild by earlier standards—was too religious for the teaching of morals, not whether public school curriculums should be secular, a matter upon which there was no disagreement. Although Justice Moore was unable to convince his colleagues to join with him in holding the reading book to be unconstitutional, he moved the focus of the debate so that all of the justices agreed that education was to be secular. The Pfeiffer case, though more explicit in its rejection of religious justifications for nonsectarianism than most cases upholding religious practices, set the tone for prayer and Bible reading cases for years to come. Religious rationales for Bible reading and claims of the state’s obligation to promote religion disappeared from opinions, replaced by discussions of the secular functions of the exercises. Also, the underlying presumptions had changed. No longer was the use of the Bible presumed to be nonsectarian until it could be proven otherwise; instead, the burden was on the school to demonstrate that its use of the Bible was not sectarian. Over the next decade, state courts would consider five challenges to religious exercises in the public schools, with judges striking the practices in two of the cases. The presumption that Bible reading would continue to be upheld as nonsectarian was no longer a foregone conclusion. Following the lead of Weiss and Pfeiffer, in 1902, the Nebraska Supreme Court struck down daily readings from the King James Bible, hymn singing, and prayers according to the “customs and usages of the so-called ‘Orthodox Evangelical Churches.’” Brushing aside claims that the practices were nonsectarian, the court wrote they “constitute religious worship and are sectarian in their character, within the meaning of the constitution” (Freeman v. Scheve).85 The following year, the school board filed a motion to reconsider, supported by the NRA, that claimed the religious exercises were constitutional because the state had an obligation to promote religion in its schools. On reconsideration, the court clarified that its earlier holding did not mean that the Bible could not

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be used in the schools under any circumstance; rather, it “goes only to the extent of denying the right to use it for the purpose of imparting sectarian instruction.” The Bible could be used for its historical, moral, and literary qualities. But signaling that the presumptions had now shifted, Chief Justice John S. Sullivan stated that courts would no longer defer to a school’s characterization of the practices. “[C]ourts may rightfully intervene . . . where legitimate use had degenerated into abuse,” Sullivan warned. “That sectarian instruction may be given by the frequent reading, without note or comment, of judiciously selected passages, is, of course, obvious.”86 Conciliation went only so far, however. Chief Justice Sullivan rejected the school board’s claim that it was authorized, if not obligated, to promote religious fealty among students. Sullivan denied that the state had any authority over religious matters: “The suggestion that it is the duty of government to teach religion has no basis whatever in the constitution or laws of this state, nor in the history of our people.” With respect to religion, the state had adopted “the laissez faire theory of government.” Sullivan also rebuffed claims that Christianity deserved special legal preference over other faiths. The “whole duty” of the state toward religion was to protect every denomination in the “peaceable enjoyment of its own mode of public worship,” Sullivan wrote. This duty was not “due alone” to Christianity, but was “due to every religious body, organization or society.”87 Accordingly, Nebraska schools could use the Bible for historical, literary, and moral purposes, but not for instilling religious devotion. Religious justifications for Bible reading would no longer pass muster. Just as important in the holding was the court’s indication that even rote uses of the Bible would not escape scrutiny. Freeman thus concurred with Weiss that many uses of the Bible were sectarian. Also like Weiss and Pfeiffer, the Freeman court held that claims of America’s Christian nationhood were unfounded, particularly if that concept obligated the state to promote Christianity in the public schools. Freeman added to the growing weight of authority undermining the rationales for Bible reading in schools. As the Yale Law Journal wrote following the first decision, it doubted whether the early cases upholding Bible reading “will continue to be very generally followed, as there is a growing tendency . . . on [the] part of the courts to adopt an interpretation of this class of constitutional provisions, which will give the largest possible freedom in the exercise of religious belief.”88 Following the Freeman case, in 1904 and 1905 the high courts in Kansas and Kentucky, respectively, upheld religious exercises in their public schools. Although each court justified the religious practices as being nonsectarian, each opinion went through legal gymnastics to emphasize the secular purpose of Bible reading for its literary, historical, and moral value. As further indication

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of how far religious justifications had fallen, the Kansas court insisted that the daily readings of the Lord’s Prayer and the Twenty-third Psalm served no religious function at all but were for the sole purpose of “quieting” the students. By so characterizing the practices, both holdings essentially reinforced Freeman, the only differences being the ultimate outcomes and the courts’ unwillingness to presume that the Bible’s use was inherently sectarian.89 The apologetic quality of the Kansas and Kentucky decisions was absent from the 1908 Texas case of Church v. Bullock. There, the Texas Supreme Court upheld a local school practice of Bible reading and reciting of the Lord’s Prayer over a challenge by Catholic and Jewish parents. Acknowledging that the practices were Christian in orientation, the court held that the exercises, conducted without comment, did not advance “the views of any one denomination.” In so holding, the Texas court came the closest to identifying a religious rationale for Bible reading of any appellate court since the Donahoe case fifty years earlier: Christianity is so interwoven with the web and woof of the state government that to sustain the contention that the Constitution prohibits reading the Bible, offering prayers, or singing songs of a religious character in any public building of the government would produce a condition bordering upon moral anarchy. Despite its flirtation with the maxim, the Texas court grounded its decision on the nonsectarian nature of the exercises. Yet, in Texas, nonsectarianism was a more encompassing concept than existed in Wisconsin, Michigan, and Nebraska. For the Texas court, sectarianism was related to the teaching of a religious creed or “the views of any one denomination of people.” General instruction in “the moral truths of the Bible” was not sectarian. The Texas court’s understanding of nonsectarianism was consistent with the notion advanced by Horace Mann sixty-five years earlier, an understanding that was in decline. Its willingness to rely on religious justifications for Bible reading put it at odds with the prevailing trend, a fact it acknowledged.90 The final significant Bible reading decision of the period came in Illinois in 1910. In People ex rel. Ring v. Board of Education, the Illinois Supreme Court joined the Ohio, Wisconsin, and Nebraska high courts in striking down Bible reading while adding its voice to the greater chorus of holdings rejecting religious justifications for religious exercises in the public schools. A divided court, speaking through Justice Frank K. Dunn, held that the daily exercises— selected readings of the King James Bible, recitation of the Lord’s Prayer, and hymn singing—“constitute[d] worship” and were thus sectarian. As in Weiss, the Illinois court was not swayed by claims that the practices were nonsectarian. “Prayer is always worship,” Dunn wrote, and so far as Bible reading was

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concerned, “[r]eligious instruction is the object of such reading.” Dunn also agreed with Justice Lyon in Weiss that the exercises could not be considered nonsectarian if students objected to the practices and were allowed to be excused from participating. Finally, the court disputed that a school district’s stated rationale for the exercises should be given deference. Even if religion had not been the goal behind the exercises, Dunn wrote, “religious instruction is accomplished by it.” Debate over the true purpose for Bible reading was beside the point for the Illinois court, which held that “its use in the schools necessarily results in sectarian instruction.”91 In addition to rejecting the various arguments supporting nonsectarian instruction, Justice Dunn also rebuffed the school’s claims that the exercises were permissible as acknowledgments of the nation’s Christian heritage. Demurring to the school’s argument that Illinois could be considered “a Protestant state,” Dunn responded that the phrase meant nothing more than that the “majority of its people adhere to one or another of the Protestant denominations.” Such a designation could have no legal effect, however: [T]he law knows no distinction between the Christian and the Pagan, the Protestant and the Catholic. All are citizens. Their civil rights are precisely equal. The law cannot see religious differences, because the Constitution has definitely and completely excluded religion from the law’s contemplation in considering men’s rights. . . . All sects, religious or even anti-religious, stand on an equal footing.92 In the end, the Illinois court rejected all theories supporting Bible reading, including nonsectarianism and the Christian-nation maxim. As Justice Lyon had determined in Weiss, Dunn found that Bible reading necessarily devolved into sectarianism. Dunn also rejected arguments that the relationship between religion and civil authority legitimized the exercises. “Religion does not need an alliance with the state to encourage its growth,” he wrote. “The law does not attempt to enforce Christianity.” As such, Bible reading and prayer could not be justified on grounds of a special relationship between Christianity and the state. The public school, “like the government, is simply a civil institution,” Dunn declared. “It is secular, and not religious, in its purposes.”93 The majority’s repudiation of the various theories supporting Bible reading drew a spirited response from Justice John P. Hand, who argued that the Bible should be allowed in the schools for its historical, literary, and moral value. Justice Hand also took issue with Dunn’s criticism of the Christiannation rationale. Quoting from Justice Story’s Vidal decision, Hand argued that “Illinois is a Christian state” and its people “are a Bible reading people.” The dissent urged that local schools be able to decide whether to have Bible reading

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and prayer in the schools.94 These assertions elicited a sharp rebuke from the majority. All religions stand equal before the law, Justice Dunn reiterated, and no faith has a right to see its beliefs enforced by the schools. “Whatever may be the view of the majority of the people, the court has no right, and the majority has no right, to force that view upon the minority, however small.”95 The Illinois Supreme Court decision in Ring was significant for several reasons. First, Ring joined Weiss in holding that the Bible was inherently sectarian, perhaps not fully in content, but in its common use. The court asserted that schools could not have it both ways, using the Bible to teach values but feigning its inspirational qualities: “it cannot be separated from its character as an inspired book of religion.” Dunn’s analysis attacked the transparency of claims that Bible reading and prayer could be conducted for religious reasons provided they were not too religious. Although the majority did not categorically reject the concept of nonsectarianism, it severely undercut its rationality. The Harvard Law Review concurred in its comment on the holding, stating that Justice Dunn had expressed the “better view”: any reading from the King James translation “without comment or interpretation constitutes ‘sectarian instruction.’”96 Ring was also significant because it contained the most complete rebuff since Minor of the argument that Bible reading was justified because of Christianity’s special legal status. By the turn of the twentieth century, such claims were having no success with courts and were usually advanced by Bible reading supporters as a complement to more secular justifications for nonsectarianism. But, as many attorneys and judges recognized, justifying the distinctly religious practices on nonreligious grounds was becoming increasingly untenable, particularly against Catholic and Jewish claims to the contrary. Finally, the Illinois Supreme Court was an influential court whose decisions were well respected nationally. By finding religious exercises to be unconstitutional—and in reversing its earlier ruling in McCormick v. Burt (1880) upholding such practices—the Illinois court lent its stature to the arguments against organized religious exercises in the public schools.97 The Ring case, like the Minor and Weiss cases before it, was a watershed in premodern church-state law, and it exposed the widening crack in the Protestant hegemony over American culture. While Minor had signaled the demise of religious arguments supporting religious exercises in the public schools, Ring was its functional obituary. Even though religious arguments would occasionally be raised in the future to support nonsectarian exercises, no court would again give serious consideration to claims that Christianity’s popular or legal status required the state to support religious instruction in the public schools. On a practical level, the handful of decisions striking Bible reading also reinforced the perception of a general decline in religious exercises, as documented

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in Commissioner Harris’s reports. Early in the century, the editors of Biblical World noted that “a gradual process [of ] state laws have come to forbid biblical instruction, or even a devotional use of the Bible, in the common schools.” “The losses which have resulted are serious indeed.” Whether the decline was truly substantial or merely perceived as such, it would fuel a revival of interest in Bible reading in the schools in the early twentieth century. The Ring decision in particular was attacked in popular and religious journals and by a handful of legal scholars.98 A backlash to secularization would spur the advent of the “releasedtime” movement—promoting religious instruction of students by religious councils—coinciding with the rise of Protestant fundamentalism. In 1922, a West Virginia educator would write, “There can be little doubt that the Bible is coming back into the schools. . . . There has been in the last decade a distinct turn in the opinion of the American public: the sentiment in favor of having at least some part of the Bible read at some time in school is distinctly on the increase.” In addition, in the 1910s and 1920s, several states would enact laws requiring readings from the Bible, usually without note or comment. The varied efforts to reinstall religious exercises in public schools in the early twentieth century would speak to the nadir to which they had fallen in the late nineteenth century.99 Despite such efforts, the Minor, Weiss, Pfeiffer, and Ring decisions and the Blaine Amendment debates had left the logic of nonsectarianism in tatters. In order to retain religious and moral instruction in the public schools—the goal of nonsectarianism from the beginning—Bible reading supporters now had to emphasize its secularity. In sixty years, the tide had turned from Horace Mann defending his system as religious to most supporters of Bible reading now arguing the opposite. Still, nonsectarianism served as the only viable rationale for preserving a remnant of religious exercises in the public schools. But that victory came at a cost. Writing early in the century, theologian and social reformer Washington Gladden lamented the level to which Bible reading had fallen: “no valuable knowledge of the Bible was gained from [its] hasty and desultory reading. . . . That the perfunctory reading of a few verses from the Bible every morning in school will produce any material improvement in the intelligence of the people upon Biblical subjects, or in public morality, it is not reasonable to expect.”100 As Gladden recognized, even though nonsectarianism had once justified a religiously integrated education system, it had set the stage for its ultimate secularization. As one early twentieth-century review of the transition concluded, the nation had experienced “a gradual but widespread elimination of religious and church influences from public education” throughout the previous century. The study attributed the trend to “[d]ifferences of religious belief and a sound regard on the part of the state for individual

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freedom in religious matters, coupled with the necessity for centralization and uniformity, rather than [reflecting] hostility toward religion as such.” 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.101

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PART V

The Gilded Age Settlement

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10 Reaction

This is a Christian nation. —Church of the Holy Trinity v. United States (1892) As the United States entered the final quarter of the nineteenth century, the second disestablishment was well under way. The previous seven decades had witnessed a transformation in popular and legal attitudes about the interrelationships among Christianity, the law, and civic institutions. Belief in the law as religiously grounded, as having divine origins, and representing superior, immutable principles had generally been replaced by a perspective of the law as secular and amoral, as primarily functional and adaptive to changing societal needs, and as deriving its authority from popular will, not from some higher source. As part of this transformation, the notion that the law incorporated Christian principles had lost its legal currency. Whereas this perspective had been common during the first third of the nineteenth century, often in ill-defined forms with uncertain applications, by midcentury judges had begun questioning the cogency of the maxim and limiting its application in cases. A few judges had even rejected the concept outright. While the true legal impact of the maxim may never have been great, it had served as a primary justification for the prosecution of blasphemy and Sabbath law cases.1 Not only had such prosecutions declined as the century progressed, but more significant, the rationales for the offenses had

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shifted from religious justifications to secular justifications. The decline in court enforcement of the maxim was not the best measure of the transition, however; the significance of the maxim had always been more symbolic than practical, and this is where the change was most notable. Attitudes among the bench and bar about the normative aspect of the law shifted. By midcentury, the maxim was viewed primarily as a “metaphysical” principle or as having only the most “limited” meaning, such as affording judicial notice of the religious history and traditions of the nation’s citizens. In several notable cases, courts that had earlier embraced the maxim now disputed its validity. In all of these situations, judges no longer accepted it as a valid rationale for judicial decision making. Although judges and lawyers continued to draw parallels between religious principles and the normative values that informed the law, such associations were usually at the most abstract level. As Supreme Court Justice Joseph P. Bradley wrote in 1876, “a profound system of moral and social laws” had arisen out of “the ethical consciousness of man.” These laws, which were “to be held sacred and inviolable,” could be “deemed the expression of Divine Law,” but only in the sense that they evolved from “the Spiritual exercise[s]” of humans derived from their ethical consciousness. Fundamentally, they were human-made laws that reflected societal norms. The law had lost any distinct religious character.2 With the decline of the maxim, new legal rationales had arisen that changed the way in which the law was perceived and applied. Nuisance and police power rationales, without which most Sabbath and sumptuary laws would not have survived, redefined the purposes of the offenses and led to the narrowing of prohibited conduct. Now, Sabbath breaches were actionable only when they created an actual disturbance or were susceptible to a health-and-welfare justification. Similarly, blasphemous or profane language was no longer prosecuted merely because it offended Christian sensibilities; courts now required independent evidence that the utterance caused a breach of the peace, thus melding blasphemy into disturbance of the peace. Requirements that oaths be based on express declarations of religious faith had generally passed away, and prohibitions on commercial and legal transactions on Sundays had generally been removed. While shops and businesses still remained closed on Sundays, where Sabbath laws were enforced the laws were now justified as health and labor regulations. Also, the practice of Bible reading and religious instruction in the nation’s public schools had been transformed. Even though religious exercises continued in many locales, they were a far cry from the integrated Protestant instruction that had permeated much of antebellum public education. In many cities, Bible reading was being discontinued; where it occurred, it was generally

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conducted without comment or instruction by teachers while dissenting students were excused from participating. Most significant, an increasingly secular view of nonsectarianism served as the rationale for the exercises, one that was decidedly different from the version that had been promoted by the New York Free School Society or Horace Mann. And, as previously discussed, a handful of courts had ruled that even rote, nonsectarian exercises violated understandings of disestablishment. As most educators and observers readily acknowledged, public schooling was becoming secularized.3 The weight of these changes meant that popular attitudes about church and state were slowly shifting. People from a variety of classes and professions were adapting to the modernization and growing religious diversity by questioning long-held assumptions about the role of government in reinforcing Christian values. The Cincinnati Bible controversy had demonstrated a growing division over not simply the issue of Bible reading but the duty of government institutions to promote Christianity or religion in general. The state exists and acts for “temporal purposes,” liberal Presbyterian Samuel Spear asserted in 1876, and it is “no more Protestant than it is Catholic, and no more Christian than it is Jewish or Mohammedan.” The state was simply a “political body” and thus had “no religion to teach or sustain or compel the people to sustain.”4 These developments in church-state relationships did not go unnoticed by the general public, particularly those in the Protestant majority. Following the Civil War, conservative Protestants became alarmed that the nation’s legal and civic institutions had lost their moral footing and had abdicated their role as a protector of religious norms. The developments within those institutions, however, represented only some of the challenges to Protestant culture that arose in the closing decades of the century. Protestants faced a new set of dilemmas, including industrialization, labor unrest, urbanization, and a growing religious pluralism, the latter fueled by a rapidly expanding foreign immigration. In his 1885 bestselling book, Our Country: Its Possible Future and Its Present Crisis, the Reverend Josiah Strong listed immigration, Romanism, wealth, the city, and the school question among the perils facing the nation.5 At the same time (and possibly resulting from the above challenges), the nation experienced a period of religious malaise that historians have termed the “spiritual crisis” of the Gilded Age. During this period, Americans witnessed a rapid commercial expansion that placed financial self-interest above concerns for community and fellow citizens. Many communities which had previously shared a set of Christian values were now being bombarded by disaggregating forces of change, resulting in feelings of spiritual disconnectedness. As historian Robert Wiebe has written, “America in the late nineteenth century was a society without a core.”6

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The paradox of the spiritual crisis was that it came at a time of unparalleled prominence for American Protestantism. Protestant values infused the culture, religious affiliation was at an all-time high, and people from all levels of society espoused world views in which religion played a central organizing role. The British observer Lord Bryce, writing in his book The American Commonwealth (1891), described the nation’s religious character in robust, yet informal, terms: The whole matter may, I think, be summed up by saying that Christianity is in fact understood to be, though not the legally established religion, yet the national religion. So far from thinking their commonwealth godless, the Americans conceive that the religious character of a government consists in nothing but the religious belief of the individual citizens, and the conformity of their conduct to that belief. They deem the general acceptance of Christianity to be one of the main sources of their national prosperity, and the nation a special object of Divine favour.7 Yet despite this position of prominence, the problems associated with urbanization, industrialization, immigration, poverty, and crime created a dilemma of seemingly intractable proportions for the evangelical churches and their leaders. Evangelical churches, which had spent most of the century strengthening their ties to the culture, now witnessed a “vulgarization of the Protestant ethic” and an erosion of theological integrity as they sought to respond and accommodate to the changing times. It was increasingly evident, Josiah Strong wrote, “that church provision is becoming more and more inadequate to [meet] the needs” of the nation.8 Compounding the dilemma for Protestants were the new religious challenges of skepticism, Darwinism, biblical criticism, and the growing rejection of optimistic postmillennialism for pessimistic forms of premillennialism. Darwinism in particular indicated to many that God was irrelevant in the structure of the universe and that humans, arising from lower life forms, were only brute, soul-less beings. Many moderate Protestants were able to accommodate aspects of evolution and biblical criticism within their theological framework, but others were unable to shake the sense of compromise if not spiritual capitulation. “[ T ]he denial of a design in nature is virtually the denial of God,” Princeton theologian Charles Hodge wrote in his critique of Darwinism. “It is Atheism.”9 At a minimum, a perception existed that evangelical churches were losing their influence if not relevance in the modern culture. This subtle disquiet, termed “modern doubt” by Victorians, was much more pervasive and unsettling than any of the scientific challenges facing evangelical culture. As one critic of religion wrote in the North American Review, the “world has, indeed,

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been moving very rapidly during the last generation, and theology, which used to be in the van[guard] of human thought, and in some measure to lead in human progress, has fallen to the rear, and is in imminent danger of being left altogether.”10 Spurred on by perceptions of peril, if not by feelings of spiritual insecurity, evangelicals during the Gilded Age attached themselves to campaigns and movements that promised to reverse the trend and reinstate Christian norms as guides for the culture. “The new and strange perils that have come upon us—socialism, anarchism, Romanism, saloonism, political corruption, and kindred evils—can be relieved only by organized, applied Christianity,” asserted the Presbyterian Quarterly in 1888. Even though the Gilded Age was a period of religious prominence and expansion, it was also a time of retrenchment and reclaiming of America’s Christian roots in response to perceived challenges to Protestant hegemony.11 One organization that reaped the benefits of this spiritual disquiet was the National Reform Association which, in addition to activities aimed at securing stricter Sabbath enforcement and retaining Protestant exercises in the public schools, sought to ensure America’s Christian character through a constitutional acknowledgment of God and Jesus Christ. As support for its cause, the NRA and other conservatives resurrected earlier myths about the nation’s religious founding and the law’s religious origins. Also during the last quarter of the nineteenth century, religious conservatives proposed legislation to impose a national Sunday law and, as discussed in the previous chapter, to guarantee the place of the Bible in the public schools. Finally, near the end of the era, the U.S. Supreme Court, which had generally stayed out of church-state debates, issued an opinion affirming the Christian character of the nation and its institutions, temporarily breathing new life into the moribund maxim.12 Late nineteenth-century assertions of America’s Christian nationhood are only partially attributable to conservative reactions to modernization and the perceived secularization of the culture. An equal number of Protestants sought to reconcile the evolving trends of disestablishment with the persistent Christian influences in the culture. For many, the wealth and progress of the nation and civilization were attributable to Christianity. “No other religious belief, or disbelief,” wrote Justice Bradley, “could have done so much for the elevation and refinement of the human race as Christianity has done during the last eighteen hundred years.”13 Like Bradley, many judges, clergy, and commentators acknowledged and even accepted the developments of the previous half-century; yet, they sought to reconcile—and reaffirm—a public role for religion in an increasingly diversified culture. Their affirmation of an informal interdependency between republican and Christian values and between the institutions of church

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and state reflected less of a reaction to secularizing trends and more of a desire to fulfill the promise of disestablishment in a nation that was both undeniably Christian and democratic. These two perspectives, not always distinct, produced a round of commentary during the closing decades of the century on the meaning of disestablishment and on whether America was a Christian nation. They were joined in the discussion by a growing number of people who asserted a distinctly secular perspective on church-state relations. Although the “reacters” were chiefly responsible for a resurgence of the maxim of Christianity forming part of the law, the “reconcilers” also sought to make sense of the maxim in a religiously diverse, democratic culture. The rhetoric from these two perspectives sounded similar at times, but marked differences distinguished the approaches. For the former group, the revival of the maxim reflected a desire to reclaim a lost principle while halting a decline into secularism. For the reconcilers, a golden age of Protestantism was at hand, and the new challenges of religious diversity, immigration, industrialization, urbanization, and imperialism provided opportunities for greater collaboration between church and state. In the end, the reacters were no more able to halt the disestablishing trend than they were able to revitalize the maxim as a viable legal principle. The reconcilers were more successful in demonstrating that disestablishment did not mean the complete secularization of the culture nor the privatization of religion. But their willingness to reconcile with disestablishing forces meant that their compromises could do little to forestall the trend.

Reclaiming a Christian America The conservative reaction to secularization is well represented by the activities of the National Reform Association, one of the more prominent groups in the movement to reclaim America’s Christian character. Formed primarily in response to the turmoil of the Civil War, the NRA’s goals quickly transcended that conflict, and the organization emerged as a leading force in the effort to “reform” the law and policy during the Gilded Age. Beyond its leadership role in the movement against secularization, the NRA more than any other group promoted the notion of America as a Christian nation. Representing the conservative religious perspective in its purest form, the NRA deserves special consideration.14 The NRA arose out of the spiritual discord that accompanied the Civil War. During the early years, northern Protestants commonly viewed the war as God’s punishment for America’s sin of slavery. A handful went further and

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asserted that the calamity of war was due to a much larger transgression. Reminiscent of the orthodox clergy during the 1800 election, these conservative Protestants argued that the nation’s misfortune rested with its failure to enter into a covenant with God at the founding, such that the country could not truly be considered Christian. In a sermon following the first Union defeat at Bull Run, theologian Horace Bushnell declared that the very foundation of the U.S. government was at fault. The founding fathers had established a government without a moral or religious basis, Bushnell insisted. There could be little fealty to a Constitution that failed to recognize that all authority was derived from God. Bushnell stated that the time may have come to recognize the supremacy of God in the Constitution itself.15 In early 1863, a group of northern clergymen and lay leaders met in Xenia, Ohio, to talk and pray about the spiritual crisis facing the nation. On the second day of the conference, John Alexander, a Presbyterian attorney and industrialist, spoke of the sins that had led to war and of the need for national repentance. “We regard the neglect of God and His law, by omitting all acknowledgment of them in our Constitution, as the crowning, original sin of the nation, and slavery as one of its natural outgrowths.” As a means of regaining God’s favor, Alexander proposed that “the most important step remains yet to be taken—to amend the Constitution so as to acknowledge God and the authority of His law.” Coincidentally, a second group of religious leaders meeting around the same time in Sparta, Illinois, arrived at a similar conclusion.16 Alexander’s proposal was well received, and the following January representatives from both conventions met in Allegheny, Pennsylvania, to organize the Christian Amendment Movement, soon to be called the National Reform Association. The association set out to secure an amendment to the national Constitution that would acknowledge the lordship of God and Jesus Christ and thereby guarantee that America was Christian in appearance and in fact. At the core of the new movement were members of the Reformed Presbyterian Church (Covenanters), who had long criticized the lack of an affirmation of God in the Constitution.17 Ultra-Calvinist in belief, the Covenanters adhered strictly to the Westminster Confession of Faith and taught that the only legitimate governments were those that acknowledged God’s authority. Because the national Constitution lacked an affirmation of God, Covenanters refused to vote or hold public office. In addition to the Reformed Presbyterians, support for the association came from the similarly orthodox United Presbyterian and Associate Reformed Presbyterian churches. With the war still raging in 1864, support for a constitutional amendment came also from the Old School Presbyterians, northern Methodists, Dutch and German Reformed bodies, and the Episcopal Church. Despite its initial

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wide following, however, the NRA would remain under the control of ultraCalvinists throughout its existence.18 As founded, the NRA was chiefly committed to obtaining a constitutional acknowledgment of God. Although its members eagerly anticipated the practical benefits of such a measure, such as increased Sabbath enforcement, the likely effects of the amendment were of secondary importance. Under the covenantal theology held by the NRA’s core members, a formal acknowledgment was necessary to correct the nation’s errant relationship with God. America’s popular government, and its entire moral framework, would crumble without such an acknowledgment, they felt, even though the nation had existed for almost a hundred years without one.19 The Allegheny convention formally adopted John Alexander’s proposed amendment in the form of a memorial to Congress. Initially, the proposal attracted the support of Senators Charles Sumner of Massachusetts, B. Gratz Brown of Missouri, and John Sherman of Ohio, brother of the famous Civil War general William T. Sherman. The Independent, the nation’s leading Protestant newspaper, also announced support for the memorial. Shortly thereafter, leaders of the association obtained an audience with President Abraham Lincoln, who promised to give the proposal appropriate attention but remained noncommittal. “I will endeavor to do my duty to my God and to my country,” Lincoln obliquely replied. Later, after Lincoln’s assassination, the NRA would turn the martyred president’s qualified response into an endorsement of the movement’s goals. Only the immediacy of the war and Lincoln’s untimely death prevented the passage of the amendment, or so they maintained. John Alexander would claim that Lincoln said: “You got one of the things you asked for in my first administration [the emancipation of the slaves], and I hope you will get the second in my second administration.” At the time, the NRA felt that there was “no practical opposition” to the movement and that passage of its amendment was imminent.20 In reality, the association had difficulty obtaining serious support for its amendment. Many influential figures who championed the amendment in theory balked at supporting it in practice. Charles Sumner, who initially had expressed interest in the amendment, changed his stance after Jewish constituents complained that the measure would lead to the legal establishment of Christianity. In a letter to a supporter on December 29, 1864, Sumner wrote that he was “astonished” at rumors that he supported a “proposition to disfranchise [non-Christians]. . . . I have said that I should not object to a recognition of God by formal words in the Constitution. . . . That is all; I take it no Hebrew would differ with me on this point.”21 An appeal to Justice Joseph Bradley for support was also rejected. Bradley saw neither “the necessity [n]or the expediency” for

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“obtaining such an amendment.” The “voluntary system” established by the founders was “as favorable to the promotion of real religion as the systems of governmental protection and patronage” in Europe, Bradley wrote in reply. An additional factor was that northern attitudes toward the war had changed by late 1864. Religious leaders, including Horace Bushnell, now viewed the war as a purifying act that had sanctified the nation through the blood of its casualties. Imminent victory indicated God’s approbation of the northern cause. The Independent also stepped back from supporting the measure. As a result, most religious and political figures had little interest in the proposed amendment once it was introduced in Congress.22 Despite the loss of support, the association was still able to have its proposal considered by the Senate Judiciary Committee in late 1864. On March 2, 1865, the committee reported the memorial back to the full Senate, stating that “it was unnecessary and injudicious, at this time, to make such an amendment.” Speaking for the committee, Senator Lyman Trumbull maintained that the Constitution already recognized “the existence of a Supreme Being” by requiring public officials to take an oath. “[A]nd what is an oath but a promise corroborated or confirmed by an appeal to the Supreme Being?” Language in the First Amendment protecting the free exercise of religion also indicated that the Constitution “recogniz[ed] the right of religion,” Trumbull stated. Because the committee viewed the amendment as unnecessary and possibly redundant, it asked that the matter be tabled.23 After the rebuff by Congress, the NRA floundered for several years. During this period, the association went through a restructuring that set its agenda for the next fifty years. The movement that emerged in the late 1860s was different in that it was less visibly sectarian and more pragmatic. While ultra-Calvinists still made up the bulk of the membership, the aims of the association became more practical. The rhetoric softened, and the amendment became less an end in itself than a means of accomplishing a particular agenda. “[T]he Religious Amendment of the Constitution is not, in itself, the end we seek,” wrote the association’s journal, the Christian Statesman, in late 1867. “It is but a means to an end, and that end is the arousing and combining of the Christian people of America in a compact, enthusiastic, determined movement to carry out the religious idea of government in all its practical applications.” From 1868 on, the NRA became a vocal advocate for stricter Sabbath enforcement, the recision of permissive divorce laws, and continuing Protestant religious exercises in the public schools. Through these issues, and not the amendment, the association would exercise its greatest influence.24 One reason for this more pragmatic approach was a change in leadership. In 1868, the association elected William Strong, a justice on the Pennsylvania

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Supreme Court, as president in place of John Alexander, the Covenanter attorney. An Old School Presbyterian, Strong was a conservative voice on the Pennsylvania court, and he had relied on the maxim of the law’s incorporation of Christianity to uphold a Sabbath conviction.25 In 1870, President Grant appointed Strong to the U.S. Supreme Court. Strong continued to serve as president of the NRA until 1873, even though he was sitting on the very court that would have been called on to interpret the meaning of the Christian amendment had it been ratified. Strong resigned from the Court in 1880 at the height of his career and devoted the final fifteen years of his life to the work of the association and the American Bible Society.26 Under the leadership of Strong and other pragmatists, the theological basis for the Christian amendment also changed. When initially founded, the association had professed that the nation had never truly been Christian and that the Civil War was God’s punishment for the lack of a covenantal relationship. In an 1864 address, John Alexander had insisted that the amendment was necessary for its own inherent reason: “We do not affirm this to be our only national sin, but that it is our Original Sin against our Best Benefactor, and lies at the foundation of our numerous and individual transgressions.” After 1868, the association insisted that the nation had in fact been founded upon Christian principles but that the framers had simply strayed from their duty of placing an affirmation in the Constitution. “We would cast no imputation on the well known Christian Character of many of the eminent men who framed the Federal Constitution,” Strong stated in a later address to the association. “Whatever explanation we put upon this unfortunate omission,” he concluded, “it cannot be considered presumptuous, after the experience of nearly three quarters of a century, to propose amendments to any constitution, however admirable and beneficent.”27 As support for its arguments for the de facto Christian character of the nation, NRA publications resurrected stories about the founders’ religious piety and their reliance on divine Providence that had been popularized by the antebellum revisionist historians. The association also pointed to the religious acknowledgments contained in state constitutions and to laws and judicial decisions about blasphemy and Sabbath desecration as evidence of a religious character. The religious statements contained in Ruggles, Updegraph, and Vidal were especial favorites of the association. This body of evidence allowed Strong and other NRA leaders to argue that the “principles which we here present are not new in American politics.” All the amendment would do was recognize America’s religious heritage and formalize what was already in practice. By phrasing their argument this way, the change that Strong and the others proposed appeared decidedly less radical.28

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In 1869, the NRA had its proposed amendment submitted to Congress a second time. Leaving nothing to chance, the association mounted a massive petition drive among supporters and sympathetic churches, which resulted in the submission of hundreds of memorials in favor of the amendment. Once again, the proposal received initial endorsements by several leading statesmen. Senator John Sherman of Ohio, who had been instrumental in arranging the association’s audience with Lincoln, told his colleagues in a February 8 speech that it would be well “to place in that instrument some recognition of the Providence of Almighty God, and a recognition of the further fact that this nation and its institutions have been built upon Christian civilization.” At that time, Sherman could see “no reason why the proposed amendment should not be placed in our fundamental law.” Senators Richard Yates of Illinois and Simon Cameron of Pennsylvania voiced similar support.29 After an initial flurry of interest, the proposal once again bogged down in Congress. Leading newspapers, including the Independent and the New York Times, editorialized against the amendment, with the latter stating: “As to the acknowledgment of the existence and authority of Almighty God, the founders of the Government did not think it called for in a document of the nature of our political charter—the fundamental objects of which are the maintenance of civil order and the defense of the public liberties.” Congress was also preoccupied with Reconstruction and the passage of the Fifteenth Amendment, so the NRA’s amendment took on little immediacy. The proposal languished in Congress without a hearing for five years.30 Credit for the eventual defeat of the amendment rests in part with a reinvigorated free-thought movement, led by Francis E. Abbot, editor of the leading skeptic journal, the Index, and his organization, the Liberal League. Abbot and the Liberal League joined with the more moderate Free Religious Association, a free-thought group founded by lecturer Octavius Brooks Frothingham, to campaign against the NRA and the Christian amendment. In 1872, Abbot sent out a call for signatures for a giant counter-petition to be sent to Congress. Carried on the front page of the Index for two years, the counter-petition asserted that the Christian amendment threatened “to overthrow the great principles of complete religious liberty and the complete separation of Church and State . . . which . . . was established by [the] original founders.” Abbot’s understanding of disestablishment was advanced for his day; his journal’s manifesto, the “Nine Demands of Liberalism,” called for the repeal of Sunday laws and the abolition of military and legislative chaplains, Bible reading in the schools, and church tax exemptions. At this point, however, Abbot was more interested in defeating the Christian amendment than in gaining converts to skepticism with his view of disestablishment. Abbot’s nonstop editorials were

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successful in raising concerns about the Christian amendment in the mainstream press. Most effective was the release of his counter-petition on the floor of the Senate by Charles Sumner on January 7, 1874. Measuring 953 feet long and containing 35,179 names, the counter-petition was so large that it would have stretched a quarter-mile had it not had two signatures per line, stated one newspaper. “It is seldom that 35,000 people can be found to sign an appeal against a wise measure,” wrote a Boston Globe editorial, “and 953 feet of a petition certainly go a great way in demonstrating the absurdity of the proposed constitutional plan of salvation.”31 Abbot’s petition likely spurred Congress to act. After five years of inaction, the House Judiciary Committee issued its long-awaited report on the Christian amendment on February 18, 1874. Benjamin Butler read the report of the committee, which requested that the proposal be tabled indefinitely. Butler asserted that the framers of the Constitution had considered inserting a religious acknowledgment but “after grave deliberation . . . [had determined] that it was inexpedient to put anything into the constitution or frame a government which might be construed to be a reference to any religious creed or doctrine.” This decision had been “accepted by our Christian fathers with such great unanimity that in the amendments which were afterward proposed in order to make the Constitution most acceptable to the nation, none has ever been proposed to the States by which this wise determination of the fathers has been attempted to be changed.” Butler was unclear as to what event at the convention he meant; possibly, he was extrapolating from the vote on the no-religioustest clause. Regardless, the report’s message was clear. Unlike the Senate report nine years earlier, there was no assumption of an implicit recognition of God in the Constitution. According to the House committee, the nation’s founders had been presented with the opportunity to acknowledge the existence of God and to establish Christianity as the national religion, but had wisely chosen not to do so. Furthermore, the committee perceived a possible conflict between the proposed amendment and the establishment and free exercise clauses of the First Amendment. Apparently, even a declaratory preference for Christianity was viewed as being inconsistent with understandings of disestablishment. For these reasons, the committee requested that it be discharged from any further consideration of the amendment. The House approved the committee’s report, and the Christian amendment was dead.32 Congress’s rejection of the proposed amendment was a blow to the NRA and its supporters who, in the wake of the Cincinnati Bible controversy, had hoped for a more favorable reception. The Christian Statesman criticized the report’s historical analysis, claiming that the committee had failed to examine “even the meager reports which are preserved of the debates in the Convention

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which framed the Constitution.” While acknowledging that the absence of a religious declaration in the Constitution “may have been [the] deliberate intention” of some of the framers, the Statesman declared that no one had intended the new Constitution to effect “a formal divorce of the government from the Christian religion.” The editorial ended by calling for a renewed commitment to pass the Christian amendment. “Shall the Christian features of our government be disparaged and assailed on every hand and secularism be allowed to work out the complete divorce of our government from every religious idea and institution[?]” the Statesman asked rhetorically. “[ T ]he movement will survive this, as it has many another and more skillful blow.”33 Despite its attempt at face-saving, the movement to declare America a Christian nation had suffered a significant setback. Only two weeks earlier, the association had held its annual convention in Pittsburgh, which reportedly was well attended by delegates “from almost every State in the Union and representatives of all Evangelical denominations.” In addition to renewed calls for an amendment, speakers emphasized the growing threats of Romanism, infidelity, Sabbath desecration, and exclusion of the Bible from the public schools.34 Yet, as the Independent reported, the large turnout indicated little as to the viability of the association or its cause, which the newspaper insisted was “losing strength.” Calling the NRA “intensely sectarian,” the Independent stated that there would always be a limit to the movement’s appeal, particularly so long as it advocated a constitutional amendment. While the Independent was correct about the amendment, the association would continue to find an audience for its claims that America’s Christian character was being threatened by the secularizing trends in the law and the overall culture. This was the true legacy of the Christian amendment. Evangelicals may have disagreed about the need for an actual amendment, but many shared the underlying assumptions about the role of religion in the culture and the need to remediate the nation’s spiritual decline. Working in collaboration with other religious groups, the NRA would continue to represent those Protestants who sought to stem the challenges to America’s Christian nationhood.35

Reaction and Response The failure to obtain a constitutional amendment recognizing the lordship of God and Jesus was the best thing to happen to the NRA. Once it became evident that support for a constitutional acknowledgment was lacking, the NRA was able to turn its attention to other social reform causes. Had the amendment remained at the forefront of its agenda, the association would have

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remained politically marginalized. By changing its focus to more achievable goals, the NRA was able to join forces with several other organizations to push in the 1880s a host of moral legislation in Congress and the state legislatures, all designed to stem the nation’s slide into secularism. Between 1880 and 1900, the NRA collaborated with groups such as the Evangelical Alliance, the Woman’s Christian Temperance Union, the American Sabbath Union, and the Reform Bureau, later the International Reform Bureau. Together, these “moral reconstructionists” (to use Gaines Foster’s phrase) would raise public awareness to the evils of intemperance, Sabbath breaking, Mormonism, prostitution, lotteries, obscenity, liberal divorce laws, and the decline of religion in the public schools. Conservative Protestants supplied the membership and staff of these groups, and all of the groups viewed themselves, in the words of the WCTU, first and foremost as “simply and only a religious movement.” Never forsaking the power of spiritual conversion to transform human lives, these evangelicals also believed that moral suasion alone could never achieve a Christian culture. Moral self-control was insufficient against the temptations of modernity, pornography, and the saloon; rather, legal suasion was necessary to supplement “prayer, persuasion, and the petition.” In this sense, the late nineteenth-century moral reform groups took the opposite position from the antebellum reform societies, which had emphasized moral suasion over legal enforcement. Most groups, like the WCTU and the American Sabbath Union, had a principal issue that had inspired their creation and served as their raison d’ tre. Like the NRA, the agendas of most of these groups diversified over time, such that the WCTU adopted positions on issues including Bible reading and Sabbath observance (but declined to join with the NRA and others in seeking stricter divorce laws). The visibility of their efforts was enhanced by several charismatic leaders, such as Frances Willard of the WCTU, Anthony Comstock, and the popular “Monday lecturer,” Joseph Cook.36 The moral reform groups met with mixed success. Anthony Comstock was able to secure passage in 1874 of the infamous Comstock Law, which prohibited the mailing of “obscene, lewd, or lascivious” materials (and their possession in the District of Columbia and the federal territories), although the law was purposely broad enough to outlaw the possession of information on contraception and abortion. With respect to temperance (and other moral issues), the WCTU and other groups found a ready ally in Republican Senator Henry W. Blair. Long before he supported a constitutional amendment to guarantee Bible reading in the schools (1888), Blair was at the forefront of sponsoring morally based legislation in Congress. In 1877, Blair introduced a constitutional amendment to prohibit the sale of alcohol, though the measure would languish throughout the remainder of the century and into the next. While temperance

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groups never lost sight of their ultimate goal of national prohibition, they concentrated on more achievable measures, such as a ban on the sale of alcohol in the District of Columbia and the territories and establishing a federal commission to explore the regulation of interstate liquor traffic.37 Moral reformers were also instrumental in having Congress enact the harsher polygamy laws of the 1880s. Congress had outlawed polygamy in the Utah territory in 1862, but the federal government had a difficult time obtaining convictions from Mormon-dominated juries. Americans generally held antipathy toward polygamy and Mormonism; conservative Protestants were not alone in their belief that polygamy promoted sexual lasciviousness, debased women, and undermined the institution of marriage. Encouraged by moral reformers and others, Congress passed two anti-polygamy laws in the 1880s, both laws harsh in their treatment of Mormons. Unlike the initial laws that were directed at the practice of polygamy, the Edmunds (1882) and EdmundsTucker (1887) acts directly attacked the LDS church and Mormon faith (a “heretical faith”) while they disenfranchised non-polygamous Mormons. Supporters argued that Mormonism threatened “Christian culture” and that the religiously repressive laws were necessary to prevent a “Mormon theocracy” in Utah. A few brave congressmen responded that it was Congress’s actions that constituted a “law respecting an establishment of religion,” rather than those of the Mormon church. Senator Wilkinson Call declared that Congress could not “indirectly legislate for the purpose of destroying any religion, whether false or true . . . without violating not only the principles of the Constitution, but the essential principles of the religion of Christ.”38 Such arguments were to no avail. The government imprisoned Mormon leaders and seized the assets of the Mormon church; at the same time, courts rejected clams that the laws violated Mormons’ rights to religious free exercise. “To call their advocacy [of polygamy] a tenet of religion is to offend the common sense of mankind,” Justice Stephen Field wrote in 1890. Although the prosecution of polygamy could be seen as promoting secular state interests, there also is no dispute that the U.S. government pursued Mormonism and its practices because of their inconsistency with America’s status as a Christian nation.39 An earlier but largely symbolic success of the moral reformers involved a controversy over whether to open the Philadelphia Centennial Exposition on Sundays. In the autumn of 1875, the Centennial Commission announced that it planned to open the summer-long exposition seven days a week to accommodate foreign visitors and American workers. Religious groups responded to the news by organizing writing campaigns to the commissioners. In October, Methodist ministers from Boston drafted a letter petitioning the commission to change its position on opening the exposition on Sundays. The letter asked

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the commissioners to “exercise your authority in closing every department, all the buildings, and as far as possible the entire grounds in your charge . . . on the Christian Sabbath,” because America was a Christian nation. The Reformed Presbyterian Church (Covenanters) made a similar appeal at its October convention, as did the American Bible Society in December. Religious periodicals, such as Zion’s Herald and the Christian Advocate, joined in the campaign for the Sabbath ban. “Let us not be ashamed to hear it announced to all the world that we are a Sabbath-keeping people,” stated an Advocate editorial. The opening of the exposition on Sundays would be “discordant with both our national precedents and principles,” echoed the Christian Union. Interestingly, the Christian Union criticized the NRA’s plan to erect a special building on the exposition grounds for the purpose of holding daily prayer meetings and to “give opportunity for the utterances of patriotic sentiment sanctified by the power of religion.” The plan, according to the Christian Union, was a cover for promoting the Christian amendment and would represent a “nuisance.” It is also possible that the NRA’s plan went further in mixing church and state than the Christian Union found comfortable.40 Under mounting pressure, the Centennial Commission reversed its decision to open the exposition on Sundays. This caused an expected outcry from secularists. Periodicals such as the Nation called on the commission to hold to its original decision. In a February 1876 editorial, the Index asked its readers to write the director general of the centennial to voice their disapproval: The Exposition ought to be open on Sundays for the accommodation of thousands of citizens who will find that day the most convenient for visiting it; and there is no valid reason for closing it, especially if the Centennial Bill passes [Congress] and the whole country is thereby taxed $1,500,000 for the support of the exhibition.41 Unable to satisfy either side, the Centennial Commission held a public hearing on the matter on July 6 on the exposition grounds in Philadelphia. Labor groups presented petitions claiming that the Sunday closing would discriminate against working people. But most testimony, pro and con, concerned the religious question of the closing. The Liberal League’s Francis Abbot put the issue in constitutional terms, arguing that the closing violated religious freedom by excluding all people from the exposition because a few believed Sunday to be a holy day. “The Church has no right under the Constitution thus to impose any part of its creed on the State, or to claim for those who believe it any temporal advantage over those who dislike it.” An opposing view came from T. P. Stevenson of the NRA, who told the commissioners that the Christian community expected them to uphold the Christian Sabbath, as it was both

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the law and custom of the nation. America was a Christian nation, Stevenson asserted, as was evident from the wording of the Declaration of Independence and over a hundred years of American history. Stevenson then proceeded, according to the Philadelphia Item, to launch a “vile attack” upon liberalism. Brandishing a copy of the “Nine Demands of Liberalism,” he read the commissioners selected excerpts of the Liberal League’s platform. “We demand that all laws looking for the enforcement of Christian morality shall be abrogated,” Stevenson read, leaving out the league’s call for morality based on natural laws. This was the danger the liberal agenda represented to society, he warned. Christians must not give an inch to the threat of secularism. Abbot strenuously objected to the misrepresentation of the Liberal League’s platform, but the commission found him out of order. After hearing other testimony, the commission retired and voted to continue with the closing of the exposition on Sundays. Abbot would later characterize the episode as the first battle between humanity and tyranny, with the latter emerging victorious. The victory for the moral reformers was minor but symbolic, as it represented the growing clout of those who sought to stem the perceived secularization of the nation and its institutions. The controversy also helped to put the Sabbath issue in the public spotlight. More important battles for the soul of the nation still lay ahead.42 Efforts to counteract the threats to Christian culture were not limited to enacting moral legislation. The perceived loss of the law’s religious foundation led to calls for judges and prosecutors to vigorously enforce existing Sabbath and sumptuary laws. “A firm and unbending maintenance and execution of law—of those laws that have been formulated by the gathered wisdom of the ages, and embodied in the constitutions . . . based as they are, upon Protestant Christianity—is the superlative need of the times,” wrote the Presbyterian Quarterly, “even though they demand the decapitation of daring offenders.” The Quarterly urged judges to rediscover and then reapply the law’s religious roots in their decisions.43 For conservative Protestants, one of the more visible and troubling indicators of the secularization of the culture was the relaxation in Sabbath enforcement. As discussed previously, at the same time that courts were advancing secular health-and-welfare rationales for Sabbath regulations, they were reading statutory and common-law restrictions narrowly so as not to unduly inhibit commercial and other economic activity. Commercial transactions and the transportation of goods on Sundays, once generally abjured, were now commonplace. The increasing number of legislatively and judicially created exceptions also made Sunday laws appear ludicrous, as in 1880 when the Indiana Supreme Court held that the selling of cigars at a hotel stand on

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Sunday qualified as a “work of necessity” and was thus permissible as an exception to the Sabbath law.44 In other instances, Sabbath laws that remained on the books were poorly enforced. In one example of the lax enforcement during the Gilded Age, police in Buffalo, New York, had turned a blind eye to Sunday professional baseball games for more than two years before they were finally forced to act by local religious leaders. Once in court, the judge chastised the Buffalo police commissioner for failing to enforce the law, but then noted that the local magistrate regularly dismissed all Sabbath citations, thus providing police with little incentive to stop the games.45 Sunday enforcement was so sporadic in places that businesses complained chiefly about selective enforcement which benefited their competitors, rather than about the existence of the laws themselves. Even when Sunday laws were enforced, many businesses found it more profitable to pay the small fines and continue operating on Sundays. One defendant admitted at his trial for operating an opera house on the Sabbath that he made more money from theatrical performances on Sundays than from the other six days of the week combined.46 The changes in legal rationales and enforcement of Sunday laws did not go unnoticed. Princeton theologian Lyman Atwater decried that, in their rush to embrace secular justifications for Sunday laws, legislators and judges had ignored “the obligation to observe [the Sabbath] because God commands it.” Lecturer Joseph Cook concurred that it was a “vain endeavor to preserve Sunday as a day of rest, unless you preserve it as a day of worship. Unless Sabbath observance be founded upon religious reasons, you will not long maintain it at a high standard on the basis of economic and physiological and political considerations only.” Atwater, Cook, and other conservatives feared that the loss of a religious basis for the Sabbath was having a deleterious effect on public piety.47 An 1883 article in the North American Review substantiated these concerns by reporting that only a small proportion of Americans regularly attended Sunday worship. “It is believed and frequently deplored,” wrote the author, a self-described “non-church-goer,” “that the proportion is diminishing year by year.” Regardless of whether such reports were accurate, a general perception existed among many evangelicals that piety was on the decline. “Christianity appears to many of the wisest to be at the present day in deadlier peril than it has been at any time during the eighteen hundred years of its existence,” wrote the Forum. As Timothy Dwight and Lyman Beecher had argued eighty years earlier, religious conservatives attributed the loss of public piety and decline in Sunday observance to lax enforcement and permissive attitudes.48 In May 1880, conservative Protestants held a rally in Washington, DC, to reawaken interest in the issue of Sabbath observance. Leading citizens,

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including President Rutherford Hayes and members of Congress, listened as speakers called for increased enforcement based on a reassertion of the Sunday laws’ religious roots. Supreme Court justice and former NRA president William Strong spoke of the “growing disregard of the Sabbath in this country.” Strong pointed to immigrant neighborhoods in large cities where “Sunday differs from no other day, except by an increase in vice and disorder.” Mincing few words, he described places with lax Sabbath observance as “plague spots in the community, not only poisoning its morals, disturbing its good order, but depreciating its property. They are Sodoms.” Strong closed his remarks by calling on all “Christian” and “patriotic men” to take steps “to restore the Sabbath to what it was intended to be by the framers of our laws and by our fathers.” Strong was not the only speaker to call for renewed Sabbath enforcement based on religious grounds. Secretary of the Navy Richard W. Thompson told the audience that, regardless of the reasons given for Sunday laws, they “must not forget . . . the important truth that it is absolutely necessary to our form of government that Christianity be preserved, and that the Sabbath be observed as one of the essential means of doing this.” This rally, like other events held during the same period, helped to reawaken interest in stricter enforcement of Sabbath laws.49 During this time the NRA seized on Sabbath observance as one of its prime issues. The association quickly set its sights on obtaining stricter Sunday enforcement in the states with the ultimate goal of securing a national Sundayrest law. In 1879, the NRA convinced Pennsylvania legislators to enact a new Sunday law that broadened Sabbath prohibitions and imposed a $1,000 fine on those businesses in violation. Shortly thereafter, amendments strengthening Sunday laws were enacted in other states, including Ohio, New Jersey, and Arkansas. Before long, the American Sabbath Union, the Lord’s Day Alliance, and the Woman’s Christian Temperance Union had all doubled their efforts to secure greater Sabbath observance. Increasingly, noted one observer, the “Sunday question is coming to the front.”50 With the renewed awareness of the Sabbath issue came increased enforcement. During the 1880s and 1890s, Sabbath prosecutions accelerated in the South, particularly in Tennessee and Arkansas; the latter state amended its Sunday law in 1885 to remove exemptions for Saturday observers while increasing the penalty from a fine to potential jail time. According to the newly formed Religious Liberty Association, an agency of the Seventh-day Adventist Church, approximately twenty-five people were indicted for Sabbath violations in Arkansas in 1885 and 1886. Most of the defendants were Seventh Day Baptists and Seventh-day Adventists who followed biblical dictates to observe Saturday as the Sabbath and work the remaining six days of the week. Saturday observers

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were prosecuted for such menial and nondisruptive activities as plowing, chopping wood, planting potatoes, and picking peaches. Many refused to pay the $25 or $50 fines and worked off their time on chain gangs with hardened criminals. Prosecutors, attuned to the new mood, resurrected Christian-nation arguments to support the prosecutions. Faced with this sense of urgency, courts sometimes responded.51 In 1886, the Arkansas Supreme Court upheld the conviction of a Seventh Day Baptist for painting his church on Sunday, thereby sanctioning the renewed enforcement activities. During the same year, the Tennessee Supreme Court affirmed the conviction of a Seventh-day Adventist blacksmith for regularly working on Sundays. Resurrecting a constructive breach theory, the court wrote that it was “[un]necessary to a conviction that the proof should show that any person was disturbed” by the activity. Instead, it was sufficient that the acts were done “in such [a] public manner as to have been open to the observation of the public. Their tendency is to corrupt public morals, and the example is pernicious and contrary to law and the wellbeing and good order of society.”52 These and similar decisions indicated a renewed commitment to stricter Sabbath enforcement and a reassertion of the role of courts in ensuring public piety. Quite possibly, many southern judges and prosecutors had never abandoned their belief in the religious function of Sunday laws and had needed little encouragement to resurrect religious justifications for Sabbath enforcement. But whether or not public officials were already so inclined, the renewed attention given to Sabbath enforcement validated those leanings.53 Dissatisfaction with the new secular rationales led the Missouri Court of Appeals in 1892 to question the true motive behind a city ordinance prohibiting the operation of theaters and opera houses on Sundays. Though upholding the ordinance as a valid civil regulation, the court speculated whether there could be “doubt in the mind of any man, who will be fair with himself, that the motive power behind all of these laws is the christian religion, and that they are enacted in compliance with the demands of a christian people.” No fan of the secularizing trend, the court applauded an 1854 Missouri Supreme Court decision (State v. Ambs), which had affirmed a religious basis for the law, as revealing a “blunt honesty of purpose” missing from more recent decisions in other states. However, because of increasing criticism of religious rationales, judges had “set about to find other reasons than those based on christianity.” The Missouri court described the new secular rationales as “afterthought[s],” created in “an attempt to find sanction for these statutes in considerations which have never been the moving causes of their enactment.” Despite its candid critique, the Missouri court still concluded that the ordinance was a valid civil regulation, regardless of the motives behind its enactment. In the end, it was no more

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willing to challenge the legislative authority to regulate businesses and amusements on Sunday than the courts it criticized.54 The best-known case during this period was that of R. M. King, an Adventist farmer from Obion, Tennessee, who, after repeatedly being fined for working his fields on Sundays, was indicted in June 1889 for being a public nuisance. A jury convicted the elderly King of common-law nuisance after an especially vituperative speech by the prosecutor charging Adventists with wickedness and immorality for their Sunday activities, while equating Sunday work with polygamy. “I wish to God we had more Methodist Churches, and more Baptist churches, and more Presbyterian Churches . . . until every man was brought under the benign influences of these churches; but, in the name of God, I do not want any of these Advent[ist] Churches or Mormon Churches.” The trial court fined King $75, an amount greater than allowed under the Sunday statute, which he worked off in jail. After the Tennessee Supreme Court summarily affirmed King’s conviction, his attorneys sought a writ of habeas corpus from a federal circuit court, arguing that Tennessee did not recognize the common-law offense for which King had been convicted. With that issue presented, the case quickly devolved into a question of whether the common law recognized and protected the Christian Sabbath.55 The opinion of federal circuit judge Eli S. Hammond in In re King is rambling and internally inconsistent. Judge Hammond initially declared his belief that King had been wrongfully convicted, and he chastised the prosecution for its Christian-nation argument, warning of the “danger that lurks in this application of the aphorism.” The Fourth Commandment was not a part of the common law, Hammond wrote, any more “than the doctrine of the Trinity or the Apostles’ creed.” Stating that his review was limited to considering the validity of the common-law offense, Judge Hammond then upheld King’s conviction on the ground that the law protected the Christian Sabbath because it conformed to the religious beliefs of a majority of people. By a “sort of factious advantage,” Hammond wrote, “observers of Sunday have secured the aid of the civil law, and adhere to that advantage with great tenacity.” Under Hammond’s view, Christianity was incorporated into the law based on history and demographics, not due to any inherent superiority of Christianity over other religions. Nevertheless, this rendition of the maxim was sufficient to support King’s conviction under the common law.56 Despite having acknowledged that religious “prejudices and passion” lay behind Sabbath enforcement, Hammond was unsympathetic toward King. Demonstrating an insensitivity to King’s religious liberty claim, Hammond insisted that King sought to “shelter himself just yet behind the doctrine of religious freedom” simply because the Sunday law was “distasteful to his own

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religious feeling or fanaticism.” King’s “real complaint is that his adversaries have the advantage in usage and custom,” Hammond wrote, “not that religious freedom has been denied to him.” Yet Hammond found that the other side was equally disingenuous in arguing “that it is the economic value of the day of rest, and not its religious character, which they would preserve by civil law.” As if throwing up his hands in a gesture of helplessness, Hammond stated that courts could not change “that which has been done, however done, by the civil law in favor of the Sunday observers,” and he denied King’s writ. King, who had spent several months in jail as a result of his conviction, died before his attorneys could appeal Hammond’s decision to the U.S. Supreme Court.57 This resurgence in Sabbath prosecutions, spurred on by the reaction to secularization, continued throughout the 1890s and produced holdings that had not been seen for fifty years. As late as 1894, the Maryland Court of Appeals upheld a conviction for husking corn on a Sunday. Relying on the 1834 case of Kilgour v. Miles, which had declared Maryland to be a “Christian community,” the court held that the law’s religious purpose rendered any nuisance or public disturbance requirement unnecessary. Readily acknowledging that the statute’s absolute ban on labor favored Christianity, the court remarked: But it would scarcely be asked of a court, in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday . . . and thereby promotes the cause of Christianity. If the Christian religion is, incidently or otherwise, benefitted or fostered by having this day of rest (as it undoubtedly is) there is all the more reason for the enforcement of laws that help to preserve it.58 Not until the upsurge in Sabbath prosecutions had passed did the Maryland court finally free itself of both the old rule and its religious justification, holding in 1919 that the law was essentially a civil regulation and not enforced for religious reasons.59 Based on all indications, the renewed enforcement had little impact on Sabbath observance and failed to initiate a wholesale revival of religious justifications in the law. Outside the South, courts continued to apply healthand-welfare and nuisance rationales. As the Minnesota Supreme Court wrote in a decision that repudiated its earlier reliance on religious justifications: It is unnecessary for us, at this time, to consider to what extent the legislature may, in harmony with the constitution, make laws recognizing the Christian Sabbath, and regulating its observance. All the authorities concur that the legislature may by law establish, as a

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civil and political institution, the first day of the week as a day of rest.60 This refusal of courts to abandon the health-and-welfare and nuisance rationales, and the negative publicity surrounding the harsh treatment of R. M. King and other seventh-day observers, led to a decrease in Sabbath enforcement after 1900. Judge Hammond’s erratic view of the religious basis for Sunday laws also did not further the cause of those advocating greater government support of the Sabbath’s religious functions. Before it was over, however, many devout seventh-day observers suffered fines and imprisonment as a result of the futile effort to reinvigorate Sunday observance.61 Conservative Protestants, not satisfied with increased Sabbath enforcement at the local level, sought to make Sabbath observance nationally uniform. In April 1888, the Woman’s Christian Temperance Union petitioned Congress to enact laws prohibiting Sunday mail delivery, the running of Sunday trains, and all nonessential government activity on Sundays. This petition quickly evolved into a campaign joined by the NRA, the Lord’s Day Alliance, and the American Sabbath Union to encourage Congress to enact a national Sunday law.62 Sabbath law advocates approached their chief ally, Senator Henry Blair, chair of the Senate Committee on Education and Labor, who in May 1888 introduced a bill designed to prohibit all interstate commerce, mail delivery, and all business, labor, or recreation on federal property on Sundays. Blair held a hearing on the bill on December 13, 1888, which coincided with a national Sabbath convention being held in Washington, thus providing a platform for the religious conservatives to state their case. Blair had encouraged the religious groups to secure support from labor groups, including the Knights of Labor. Although several labor groups sent letters of endorsement, the hearing was composed solely of witnesses from the religious organizations. In their testimony, Wilbur Crafts of the Reform Bureau and T. P. Stevenson of the NRA sought to broaden their cause by touting the health benefits of Sunday rest for workers. But the labor rationale was in tension with their overarching argument that the Sabbath should be observed for religious reasons, not based on health-and-welfare rationales. (The bill’s preamble also stated a purpose of promoting Sunday observance “as a day of religious worship,” leaving no doubt as to its true goal.) Crafts and Stevenson openly acknowledged their religious motives for the law, asserting that the bill would strengthen the Christian features of the government and make federal law conform with God’s laws. Without stricter laws, Stevenson insisted, “[i]nfidelity and irreligion will sweep over the land; churches will be neglected; . . . children . . . will become infidels and

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worldlings; [and] our schools and colleges, perverted to secular education, will be seminaries of atheism.”63 The hearing thus presented a dilemma for the Sabbath advocates. They believed that secular justifications for Sunday laws were a chief cause of the decline in observance; yet by emphasizing a religious basis for such laws they risked appearing strident and demagogic. Opponents highlighted the inconsistency and stridency in the proponents’ arguments. Alonzo T. Jones of the Seventh-day Adventist Religious Liberty Association charged that the bill was part of a larger effort by religious conservatives to create an informal theocracy. Jones couched his opposition in both theological and legal terms. Any legislation imposing a religious tenet would require the government to declare “just what are the principles of the Christian religion.” This was offensive to the lordship of God, Jones insisted, and was the first step toward the “establishment of a national religion.” Jones’s testimony elicited a challenge from Senator Blair, resulting in an extended soliloquy which revealed Blair’s disdain for immigrants and religious nonconformists. Pushed by Jones, Blair acknowledged his willingness to enact laws that favored the Christian majority. Jones’s testimony was not sufficient to derail the bill, but it did expose a religious purpose behind the bill that made many people uncomfortable. The Sabbath advocates continued to lobby for the bill into 1889, but Blair was unable to have it discharged from his own committee. The bill died when Congress adjourned in March of that year.64 Reaction to the secularization of the law might have even led to a brief revival of blasphemy prosecutions. In 1882, a Paterson, New Jersey, Jewish merchant was indicted and tried for blasphemy, the first such case in almost fifty years. The court acquitted the merchant after it was revealed that he and his accuser had had a business disagreement. A more infamous blasphemy trial, also in New Jersey, occurred five years later and involved Charles B. Reynolds, a lapsed minister turned free-thought lecturer who had apparently impugned the divinity of Jesus. Prosecuted under an old colonial statute, Reynolds was represented at his trial by Robert G. Ingersoll, the famous agnostic orator. Ingersoll made an eloquent speech on behalf of freedom of conscience, but he doomed his client’s chances by telling the jurors that the law had been inherited “from your ignorant ancestors, [who had] inherited it from their savage ancestors.” Common pleas judge Francis A. Child instructed the jury that the law was still constitutional in what he described as a “Christian community.” Reynolds was convicted and fined $25.65 Attempts to renew blasphemy prosecutions were met with resistance from the legal community and the press, and the revival was appropriately shortlived. The only other blasphemy trial of note occurred in Lexington, Kentucky,

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in 1894, after a Methodist minister procured the indictment of C. C. Moore for publishing an article in his newspaper ridiculing the immaculate conception of Mary. In a show of courage, the trial judge resisted local pressure and dismissed the indictment in a stinging rebuke of blasphemy laws and the Christian-nation maxim. Blasphemy was designed to protect “a religion accepted by the state as the true religion, whose precepts and tenets it was thought all good subjects should observe.” But because Kentucky forbade all religious preferences, including favoritism toward Christianity, such prosecutions were unconstitutional. “In the code of the laws of a country enjoying absolute religious freedom there is no place for the common law crime of blasphemy.”66 With the Moore case, the brief revival of blasphemy prosecutions came to an end. Although it is impossible to establish any direct connection between the conservative resurgence and these prosecutions, the religious fervor of the period created an environment that made such actions more acceptable. In the end, however, the handful of decisions reasserting the Christian-nation rationale was insufficient to create a resurgence of the maxim or to reverse the law’s secularizing trend.

The Rhetoric of Reaction The disestablishing trend during the last quarter of the nineteenth century also elicited an increase in religious and legal commentaries, most arising in response to the perceived challenges to Protestant culture. Like Josiah Strong, these commentators attacked the threats presented by skepticism, Darwinism, immigration, urbanization, and corporate greed. Some also underscored the relaxation in sumptuary and Sabbath law enforcement, and the secularization of the law generally, as causes of the cultural decay. To counteract this trend, religious and legal commentators resurrected claims of America’s Christian nationhood and of the duty of judges and public officials to enforce public piety. For some commentators, this process involved rediscovering the arguments contained in the antebellum legal decisions of Kent, Duncan, and Story and in the revisionist writings of Baird, Junkin, Colwell, and Morris. But not all commentaries were reactive. Other commentators explored the relationship between church and state as a way of reconciling the nation’s institutions and legal system with its dominant Christian culture. What this latter type of commentary reveals is a nuanced understanding of what it meant to be a Christian nation in the closing years of the nineteenth century. One of the earlier critiques of the disestablishing trend appeared in an 1876 article entitled “Civil Government and Religion,” written by Lyman H. Atwater

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and published in the cerebral Presbyterian Quarterly and Princeton Review. Atwater was a professor of moral philosophy at Princeton who shared many of the concerns, but not necessarily the goals, of the NRA. He wrote the article during the debates over the school question and the Blaine Amendment, though his piece transcended those specific controversies. Atwater criticized the development of secular rationales for Sabbath and sumptuary laws, asserting the “impossibility of utterly divorcing civil government from religion.” Atwater claimed that legislators and judges were obligated to advance Christian principles “because God commands it, no matter what may seem the effect . . . on the physical and mental condition of man.” The notion that government could be neutral toward Christianity was an anathema to Atwater, who wrote, “For the State to set aside or ignore the Sabbath, is as plainly an anti-Christian and infidel demonstration by the government, as enthroning the Goddess of Reason or a harlot in place of the true God.” Similarly, Atwater condemned the elimination of devotional Bible reading in the schools. The public schools must teach religious truths and “morals, grounded on religion.” For Atwater, there was “no neutrality here”: moral education needed a religious base. A “non-Christian, or non-Biblical, morality is an infidel or atheistic morality.” Accordingly, Atwater criticized President Grant’s 1875 call for the exclusion of “religious, atheistic or pagan tenets” from the schools and the Blaine Amendment as an inadequate, halfway measure.67 Despite arguing that public officials had a duty to further Christian piety, Atwater equivocated about America’s religious character. Raising the rhetorical question “Is this a Christian nation[?]” Atwater wrote that, if one considered the number of truly “spiritually regenerate” people in America, the answer had to be “no.” Yet, when viewed more broadly, in response to the question of whether Christianity was “the faith of the great mass of the people” and had “moulded our national life, manners, institutions, and laws,” Atwater agreed that the nation was Christian in fact. Not only was the “underlying and controlling principle” of the common law Christian; the chief function and aim of all statutory law was “to carry out the justice, equity and charity of the Bible.” Again criticizing the trend toward secular justifications for religiously based laws, Atwater insisted that it was “a sufficient argument for proposed legislation, that it is demanded by, or in accord with, Christianity.” In Atwater’s view, public officials were not only obligated to enforce Christian principles, they should proudly declare their religious motives and goals.68 Atwater’s article was among the first in a line of works by conservative jurists and religious leaders reasserting an interrelationship between Christianity and the American nation. One of the more regularly quoted works of the period was a pamphlet entitled The Nature and Form of the American Government

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Founded in the Christian Religion, written by George Shea, chief justice of the New York City Marine Court. Based on a lecture delivered to students and faculty of the General Theological Seminary of New York in April 1882, The Nature and Form was one of the more thorough restatements of the Christian-nation maxim written by a jurist in more than a generation. Relying extensively on Story’s early writings and antebellum decisions such as Ruggles, Shea asserted that there was an “absolute and simple unity . . . of the Christian ecclesiastical polity with the principles and administration of our constitutional government and of the law of the land.” Shea refuted Thomas Jefferson’s letter disputing the law’s incorporation of Christianity as not only “erroneous” and “insidious” but as revealing “a marvelously absurd conceit.” Reaching back into ancient law, Shea maintained that the common law had not merely been influenced by Christianity, but was derived “chiefly” from the scriptures. Even the three branches of the U.S. government revealed a triune structure that was “Christian in nature, form and purpose.” This historical “proof” led Shea to declare unabashedly that “the tenets of the Christian religion lie at the foundations of the government,” which in turn was obligated “to protect and regulate its operation” through sumptuary laws and other regulations.69 Judge Shea went beyond even Story and Kent with his assertion that the common law had descended directly from the scriptures. Still, his pamphlet was well received in conservative circles, and his general theme was repeated several years later in a paper entitled “The Christian Religion and the Common Law,” delivered to the American Antiquarian Society by lawyer P. Emory Aldrich. Like Shea, Aldrich set out to reestablish the maxim as a viable legal principle and to reverse the secularizing trend in the law. Also like Shea, Aldrich borrowed generously from the antebellum revisionists, relying on obscure or uncorroborated historical statements about the maxim as proof of fact: “the proposition that Christianity is part of the common law, is supported by the very highest judicial authority in both England and in this country.” As for the practical application of the maxim, Aldrich maintained that it authorized prosecutions of Sabbath and sumptuary violations, “conduct destructive of social order and regulated government,” which should “be regarded as perversions, and not the legitimate exercise of . . . sound and fundamental rights.” Though he echoed Kent and Story that such offenses were punishable “not merely as offenses against Christianity” but “because of their tendency to disturb public order and subvert organized government,” Aldrich’s threshold for what constituted a public disturbance was quite low. Anything that corrupted “general morality” and threatened “public order,” an application of constructive breach theory, could “be deemed misdemeanors and punishable by the civil power.” As to how those standards of morality and order were to be

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determined, Aldrich was apparently willing to rely on the sentiments of Christian judges.70 Shea’s and Aldrich’s pamphlets, readily available in legal circles, presented the historical and ideological arguments that many religious conservatives wanted to hear. Although neither work pointed to secularizing developments in the law, the clear message from each was that the law had lost its religious footing and that judges should rely on Christian norms when adjudicating controversies implicating moral issues. The fact that both works ignored more recent legal authority disputing the Christian-nation maxim apparently did not trouble the authors. Older authority was viewed as being closer to the original understandings of the true relationship between religion and government and reinforced popular perceptions that recent legal trends were inconsistent with the religious foundations of the law. The works of Atwater, Shea, and Aldrich offered a body of support for those people who advocated the reassertion of America’s Christian nationhood as a cure for society’s ills. Still, their works reached a limited audience, and because of their more acute views of the maxim, they likely convinced few people who were not already inclined toward their arguments. Accordingly, the revival of the maxim would have been short-lived if more respected commentators had not begun to write on the subject. The most influential work of this period to discuss the developments in American church-state relations was Church and State in the United States, written in 1888 by the nation’s preeminent church historian, Philip Schaff. Schaff was a Swiss-born and German-educated professor at New York’s Union Theological Seminary. Raised in the German Reformed Church but now a Presbyterian, Schaff was a religious moderate. The purpose of his book was to systematically analyze the American pattern of church-state relations, and much of the text compared the past and current situations in the American states with the experience in Europe.71 Schaff extolled the nation’s experience of religious freedom and separation of church and state as leading explanations for the success of American democracy. The First Amendment was “the Magna Carta of religious freedom” and stood as “the first example in the history of a government deliberately depriving itself of all legislative control over religion.” The founders’ decision to disestablish “was an act of wisdom and justice rather than self-denial,” Schaff proclaimed. At the same time, Schaff claimed that “absolute separation is an impossibility.” Responding to the Liberal League’s “Nine Demands of Liberalism”—what Schaff termed the “Infidel Program”—he asserted, “[ T ]he separation of church and state as it exists in this country is not a separation of the nation from Christianity. . . . The state cannot be divorced from morals, and morals cannot be divorced from religion.” “It requires a friendly separation, where each power is entirely

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independent in its own sphere.” Under this paradigm, government and religion shared common interests and roles in society, as both “meet on questions of public morals, and both together constitute civilized human society and ensure its prosperity.” According to Schaff, Christianity was “the most powerful factor in our society and the pillar of our institutions.”72 To this point, Schaff’s view was representative of a large number of religious moderates who considered the separation of church and state as consistent with religious voluntarism and a culture that reaffirmed, but did not dictate, Christian morals. Yet, once Schaff entered into a discussion of the overarching relationship between Christianity and America’s civil institutions, his work became less analytical and more polemical. Legal statements pronouncing America’s Christian nationhood were accepted at face value and then repeated uncritically. On one level, Schaff maintained that the nation’s democratic system was based on popular sovereignty and general laws of nature. The Constitution provided full religious liberty to all faiths, not just Christianity, and forbade preference for any creed, even Christianity generally. In a break with religious commentators such as Lyman Atwater, Schaff insisted that government could be neutral toward religion without being antireligious. In other places, however, Schaff declared that all governmental authority on earth was “of divine origin, depending on God’s will and responsible to him.” Even though the Constitution was silent on its religious origins, Schaff insisted that the document was “pervaded by the spirit of justice and humanity, which are Christian.” Relying on arguments by the same antebellum revisionists he had earlier criticized, Schaff claimed that “the framers of the Constitution were, without exception, believers in God and in future rewards and punishments” and had been guided by the “hand of divine Providence” in their deliberations. Only orthodox Christians could have designed America’s democratic system. Schaff also maintained that the common law was Christian, “namely as far as the principles and precepts of Christianity have been incorporated in our laws.” Schaff was self-contradictory, insisting that the law could not prefer any religion while at the same time uncritically affirming the early Sabbath and blasphemy holdings, such as Ruggles and Updegraph. Schaff believed that Sabbath laws had a religious as well as a civil side, and he asserted that, in order to protect Christians in their day of rest, the state could appropriately force religious minorities to “submit to the will of the majority.” For some reason, Schaff did not view such government action as a preference for one religious practice over another.73 Schaff’s perspective on church-state relationships was internally inconsistent. Apparently, the nation was Christian in the sense that Christianity fostered an enlightened, moral culture possessing the fullest religious liberty. The U.S.

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system, Schaff insisted, had grown up “under the influence of the Christian religion, and is, directly or indirectly, indebted to it for its best elements. It breathes the spirit of justice and humanity, and protects the equal rights of all.” Yet, while celebrating the freedom that accompanied the separation of church and state, Schaff accepted legal preferences for Christianity and even the coercion of religious minorities. He also uncritically accepted claims of the nation’s religious founding. Schaff could not escape the strictures of his evangelical Calvinism with its remnants of national covenantal thought. Though secular, the nation was bound to a God whose divine hand had directed its founding. It was therefore appropriate that the law and institutions reflect that relationship and conform to that guide.74 Schaff’s work was cited as the definitive source on church-state relations for many years. Because of his stature, his discussion of the Christian-nation theme, though more contemplative and less extreme than that of some commentators, gave the maxim invaluable credibility while it substantiated concerns that recent legal developments were inconsistent with the nation’s religious heritage. Schaff’s failure to articulate a clear understanding of what it meant to be a Christian nation—and his failure to repudiate the more extreme interpretations of the maxim from early legal decisions embracing the concept—helped to perpetuate the maxim in an ill-defined form. For years to come, Christian-nation advocates would refer to Schaff’s work as supporting their claims of the religious character of the nation’s institutions and the need to reclaim their rightful foundation.75

11 Reconciliation

The most thoroughly Christian nation is the most civilized. —David J. Brewer, “Why Do I Believe in Foreign Missions?” (1905) Reaction to the secularizing trends in the law and education did not come solely from those who sought to slow disestablishment through religion-affirming laws and legislation. Other Protestants witnessed the secularizing events but sought to reconcile them with what they saw as the ongoing religious influences on the culture and its institutions. Unlike their conservative counterparts, these observers did not seek to turn back the clock nor even to arrest the developments. Rather, they attempted to explain how the nation’s religious traditions were consistent with an expanding religious diversity and those emergent constitutional principles that called for greater religious equality and less church-state engagement.

The Rhetoric of Reconciliation The conservative commentators discussed in the previous chapter— Atwater, Shea, Aldrich—were not the only authors to discuss the relationship between Christianity and U.S. legal and governmental institutions. Unlike those authors who were reacting to the disestablishing trends, other commentators tendered descriptive

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views of the religious influences in the culture, law, and public institutions and, in places, sought to reconcile those influences with their understandings of the separation of church and state. Discussions about church-state relations appeared in several contemporary legal treatises. The creation of new fields of law—corporations, torts—plus the growth in statutes and court decisions spurred a host of new treatises following the Civil War from figures such as Henry Campbell Black, Christopher G. Tiedeman, Joel Prentiss Bishop, and the most prominent writer of the period, Michigan Supreme Court justice Thomas Cooley. Cooley’s Treatise on the Constitutional Limitations, first published in 1868, quickly became the most influential constitutional law book of the final third of the century.1 Cooley included within Constitutional Limitations a section on religious liberty. His approach to church-state matters was mixed; he evinced a libertarian concern for individual rights joined with an acceptance of the role of government in fostering public morals and piety. Cooley did not embrace an expansive view of individual expressive rights—especially the government’s role in protecting such rights—yet his understanding of the First Amendment was considerably more developed than either Story’s or Kent’s. Whereas Story had interpreted the First Amendment to permit government support of Christianity generally while prohibiting only “rivalry among Christian sects,” Cooley extended the prohibition to bar “preferences by law in favor of any one religious persuasion or mode of worship.” In other passages, he indicated that he believed the Constitution prohibited government from advancing Christianity over other faiths. He also went further than his predecessors by declaring that favoritism toward one sect over another was equivalent to religious persecution. Based on this view, and on his general disdain for the regulation of private commercial interests, Cooley argued that Sabbath laws tended to infringe on religious liberty.2 On the other side, Cooley did not view the prohibition on religious preferences as barring authorities from acknowledging the “superintending Providence in public transactions.” Government was not precluded from recognizing that “the prevailing religion in the States is Christian” nor that public standards of right and wrong were based on Christian norms. According to Cooley, however, the authority for public religious acknowledgments did not arise from any religious obligation but was based on the same secular policy considerations that supported health-and-welfare legislation. The rationales that allowed government “to aid institutions of charities and seminaries of instruction” also induced it “to foster religious worship and religious institutions, as conservators of the public morals” and in their capacity as “assistants in the preservation of the public order.” Cooley did not oppose a limited government use of religion to achieve legitimate secular goals.3

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Cooley’s view that the Constitution permitted public acknowledgments of Providence led him into a discussion of the Christian-nation maxim. Again, he diverged significantly from the interpretation contained in Story’s Commentaries. Cooley acknowledged that many jurists had declared Christianity to be part of the law of the land. “In a certain sense and for certain purposes this is true,” he wrote. The features of the law that governed social relations and customs had been “improved and strengthened” by Christianity’s influence. However, Cooley declined to extend the concept any further. Citing several decisions that had disputed the maxim, including the Minor case, Cooley wrote, “Christianity is not part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive law of the State.” He also disputed Story’s statement from Vidal that Christianity’s “divine origin and truth are admitted” and thus protected by the law. On the contrary, Cooley asserted, the law “does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin.” Even though society might consider some Christian precepts to embody “continual and universal obligation[s], we must nevertheless recognize [them] as being incapable of enforcement by human laws.”4 Constitutional Limitations thus advanced a narrow understanding of the law’s relationship to Christianity. The nation and its institutions were Christian in the sense that public mores and customs reflected the prevailing Christian sentiments of the people. Government was empowered to acknowledge and protect those sentiments provided its actions could be justified on separate secular grounds. Cooley was clear, however, that the maxim should never serve as a basis for judicial decision making. Moreover, even though he recognized that Christianity served as a basis for public morals, he did not identify any inherent qualities in Christianity that rendered it more suitable than other religions as a source of law or as the fountainhead of republican government. Its special status depended entirely on the “notorious fact” that it was the prevailing faith among Americans. As if to emphasize this point, Cooley noted that some acts which were offensive in Christian communities might appropriately pass unnoticed in other countries. “[T]hose things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society,” but only because “they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws, and to corrupt the community.” Cooley did not believe that the state was obliged to reinforce Christian customs in the absence of corresponding secular rationales.5

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Fortunately, with Cooley, we have a record of not only his legal theories but their practical application. Sitting on the Michigan Supreme Court in 1880, Cooley heard an appeal from a suit to enforce a promissory note given on a Sunday. The defendant had refused to pay his obligation to a charitable society, relying on the notion of dies non juridicus, which voided legal transactions conducted on the Lord’s day. Cooley rejected the defense, writing that the term “charity” took “meaning from the Christian religion, which has largely affected the great body of our laws, and to which we must trace the laws which furnish what the Christian regards as the desecration of the first day of the week.” Despite this nod to the maxim, Cooley artfully turned the defendant’s religious argument on its head, noting that churches regularly solicited for funds—offerings—on Sundays without anyone suggesting an inconsistency with the day. He refused to invalidate the defendant’s obligation merely because the “Christian people ha[d] demanded and secured . . . their method of observing the day” in the law. The decision indicated that Cooley believed that the religious influences in the law carried no practical weight.6 Overall, Cooley viewed the maxim as a historical artifact that had little practical relevance. That he had discussed the maxim at all, however, provided it with invaluable credibility; for decades, religious conservatives would quote discrete passages from his work to bolster their expanded views of the maxim.7 Because the maxim was open to so many interpretations, legal commentators who otherwise championed the law’s secularization and the nation’s expanding religious diversity occasionally cited the concept approvingly in their works. One scholar who embraced the new secular theories of the law was Christopher Tiedeman, a law professor at the University of Missouri, who in 1886 published Treatise on the Limitations of Police Power, which was intended to compete with Cooley’s Constitutional Limitations. Although Tiedeman’s book never achieved the status of Cooley’s famous work, it too became an influential legal treatise. In his summary of the First Amendment, Tiedeman advanced one of the more separationist views on church-state relations of the day, maintaining that the state could not prefer Christianity over other faiths but should be committed to full religious equality. “A law is unconstitutional which gives to one or more religious sects a privilege that is not enjoyed equally by all.”8 Like Cooley, Tiedeman felt obliged to discuss the maxim. Because the overwhelming majority of Americans were Christian, he wrote, “the law could not but recognize the fact that Christianity is the main religion of the country.” According to Tiedeman, the law acknowledged Christianity because of its “overwhelming prevalence” among Americans, making some public recognition of that religion “unavoidable.” This view amounted to little more than judicial notice of an indisputable demographic fact. But he was unwilling to take the

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maxim any further. Like Cooley, Tiedeman criticized Joseph Story’s statement that the “divine origin and truth” of Christianity were admitted by the common law. In contrast, Tiedeman asserted that Christianity had become part of the common law by default, and then only “to the extent of those of its moral precepts, which have a bearing upon social order, and a breach of which is pronounced by common opinion to be injurious to the welfare of society.”9 For Tiedeman, even this sense of the maxim was not without qualifications. While Christianity helped to inform social norms, the government could act only for secular reasons tied to clear public policy. Due to free speech considerations, blasphemy could be prosecuted only if it created a public disturbance and was “accompanied by malice and a willful purpose to offend.” Sunday laws— which Tiedeman believed were inherently religious and inhibited freedom of conscience—could be upheld only as sanitary regulations and only then to the extent necessary to accomplish those secular goals. If laws were justified or enforced for religious reasons, Tiedeman insisted, “they would fall under the [weight of ] constitutional prohibitions.” Finally, in a descriptive passage, Tiedeman wrote that public schools could engage students in devotional exercises in order to teach morality. But, he continued, “religion should be carefully distinguished from morality.” Aligning himself with educators like William Torrey Harris, Tiedeman insisted that “moral instruction does not necessitate the use of the Bible, or any other recognition of Christianity, and such recognition is unconstitutional, when forced upon an unwilling pupil.”10 Tiedeman’s treatise was important not only because it urged a narrow interpretation of the legal position of Christianity; it also advanced a growing view that constitutional provisions respecting religious liberty barred any meaningful application of the maxim. Tiedeman was one of the earlier commentators to speak of the authority of the First Amendment in prohibitory terms by noting that religiously based laws that were inconsistent with constitutional principles were “unconstitutional.” The First Amendment was not merely declaratory and aspirational. Tiedeman also strove to minimize religious influences on government policy, insisting that laws be based on secular grounds. Like Cooley, he was interested in identifying a framework for church-state relations based on constitutional and positive law. But going one step further than Cooley, Tiedeman believed that popular understandings of the maxim impeded developing notions of constitutional rights. In the end, Tiedeman was hesitant to reject the maxim outright, preferring to qualify it down to a historical and philosophical concept. He, like Cooley, sought to reconcile the religious influences in the law and culture with developing notions of disestablishment.11 The religious and legal commentary of the late nineteenth century together with the efforts of the moral reform groups kept the issue of America’s Christian

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character in the public mind. Even though the commentaries offered nuanced approaches to the maxim, their mere discussion of the maxim reinforced assumptions held by many conservative Protestants as they sought to contextualize their concerns about the increasing legal and cultural secularization. Few of the commentators were clear about what it meant to be a Christian nation in the closing years of the century. But whether intended or not, they supplied language that was easily misunderstood and manipulated, substantiating popular notions that U.S. law and civil government had religious origins and functions. This propensity worried one commentator writing in the Albany Law Review in 1879, who warned about the dangers in a revival of Christian-nation commentary. The author acknowledged that “the Christian system is the moral source of an undetermined but very large part of our common as well as of our statute law,” but only because every civil code “adopts the moral code of [its] people.” But then he continued: In the form in which [the maxim] is commonly stated it is calculated to confuse the mind and mislead the judgment of those unable to supply in thought the requisite limitations. . . . It takes no account of the distinction between civil laws made compulsory by physical penalties, and the obligations of morality and religion. . . . Literally understood, the maxim contains a dangerous principle, liable to be used in justification of judicial decisions which may infringe upon real liberty of conscience. In a nation based on religious liberty and equal rights, the enforcement of civil laws had to be justified on secular grounds. Unless people understood the limited nature of this relationship, “the maxim . . . is comparatively meaningless.”12 Such cautions were rare. With the Protestant empire at its apex in America and facing ever-widening challenges, the temptation to identify a causal relationship between the Christian religion and U.S. law and democracy was too great to resist.

The Christian-Nation Decision The Gilded Age revival of the Christian-nation maxim had its most notable manifestation in an opinion by the U.S. Supreme Court. In 1892, in the midst of renewed Sabbath enforcement and legislative efforts at moral reform, the high court entered the public fray by declaring that America was “a Christian nation.”13 The declaration in Church of the Holy Trinity v. United States about the religious origins and functions of civil government and law, while not germane

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to the issues in the case, surpassed Justice Story’s statements in Vidal in breadth and detail. The timing and source of the declaration validated the beliefs of conservative Protestants and emboldened them in their legal efforts to restore America’s religious foundations. Yet the declaration, while written by a justice known for his religious piety, did not arise out of the same frustration being experienced by the religious conservatives who were combating the nation’s decline into secularism. Rather, its author, Justice David Josiah Brewer, was seeking to reconcile the positive Christian influences in the culture with a quickly modernizing state. Brewer’s motivations and message were lost on most observers, particularly religious conservatives who would extol the declaration well into the twentieth century. But, to the dismay of many conservatives, the declaration did not usher in a revival of religiously based laws nor a new round of judicial affirmations of the maxim. Rather, the declaration in Holy Trinity would come to be repudiated by commentators and future members of the Court.14 Unlike most cases containing Christian-nation rhetoric, Holy Trinity raised no issues of constitutional significance but called merely for the interpretation of a minor federal statute—an immigration law—as it applied to an unforeseen situation. The underlying religious issue—a purported free exercise claim— was subsumed by the larger issue of statutory construction and not even argued. Accordingly, nothing in the case called for a discussion of the nation’s founding principles or its religious character. Prior to the Court’s announcement of the decision on February 29, 1892, an exegesis on the subject was not expected.15 Holy Trinity involved an appeal from a violation of the Immigration Act of 1885, which prohibited the importation of foreigners into the United States under contracts of employment. In 1887, the plaintiff, New York City’s prestigious Holy Trinity Episcopal Church, had hired E. Walpole Warren, a wellknown British pastor, to come to America to serve as its new rector. The employment contract, executed while Warren was still in England, violated the new immigration law and the church was fined $1,000. After losing at trial, the church appealed the fine to the Supreme Court, charging that the law had been misapplied.16 The Supreme Court agreed with the church and reversed the lower court’s imposition of the fine. Writing for a unanimous Court, Justice Brewer held that both the title of the statute and its legislative history indicated that Congress had never envisioned that the law would restrict the hiring of “ministers of the gospel, or, indeed any class whose toil is of the brain.” Instead, wrote Brewer, Congress had intended the statute to apply “only to the work of the manual laborer, as distinguished from that of the professional man.” The statute, Brewer maintained, simply did not apply to Reverend Warren’s employment contract.17

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Up to this point, the opinion presented a straightforward discussion of congressional intent and rules of statutory construction. The opinion did not mention any religious claim raised by the church (there was none) nor discuss competing theories of deference to legislative authority. After announcing the holding, however, Justice Brewer offered a second rationale for why the immigration law could not apply to Reverend Warren. According to Brewer, the United States was a “Christian nation” that had been founded by religious people who had formed a government based on religious principles. The nation’s laws and charters recognized the importance of Christianity and accommodated its practice. Christianity also served as the basis for the customs and religious beliefs of the American people, Brewer asserted. Consequently, Congress would not—and could not—pass a law contrary to the pervasive Christian character of the nation. Any law effectively barring the hiring of a minister of the gospel had no authority in a Christian nation.18 As support for his statement that America was a Christian nation, Brewer quoted extensively from colonial charters and early state constitutions that acknowledged God’s authority over human action and established or favored Protestantism. Brewer also noted several early state cases where judges had declared Christianity to be part of the common law. Finally, Brewer pointed to “the multitude of [churches and] charitable organizations existing everywhere under Christian auspices,” all of which announced the same truth: These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?19 The answer to Brewer’s rhetorical question was, of course, a resounding no. Despite the exceptional nature of Brewer’s opinion, his discussion of the Christian-nation maxim lacked a polemical quality; it was as if Brewer was relating the consensus view of American church-state relations. Consistent with this matter-of-fact style, Brewer did not explain what it meant to call America “Christian,” nor did he explore the broader implications or practical significance of his legal pronouncement. The phrase was not self-defining— the United States could be “Christian” in several senses of the word—and Brewer’s use of history did little to clarify his meaning. From the face of the opinion, Brewer’s reliance on historical data suggests, at a minimum, that he considered America to be Christian in a historical sense: American culture had a significant religious tradition, one that had influenced U.S. law and the

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nation’s founding principles. Brewer’s neglecting to discuss the accompanying experience of religious favoritism and persecution indicates that he considered this history to be benign. At a different level, his use of inclusive language and his failure to note the nation’s religious diversity suggests that he also considered America to be Christian because the majority of its people practiced that faith. Beyond those points, however, Brewer did not make himself clear. He did not indicate whether he considered America specially chosen by God or whether public officials had a duty to enforce Christian norms. And even though he cited the prevalence of Sabbath and sumptuary laws as supporting his argument, Brewer did not advocate their enforcement on religious grounds. Thus, despite Brewer’s extensive discussion of the maxim’s various manifestations, the reader was left to surmise the implications of the decision.20 Divining the purpose and meaning of the Christian-nation declaration is difficult. The religious discussion is longer than the primary holding, and there is nothing to indicate that it was written as a mere afterthought. The opinion’s author, David J. Brewer, was devoutly religious, the son of a Christian missionary and an active Congregationalist layman. One can assume that Brewer wrote with a purpose in mind, but the decision on its own reveals little of the complexity of his understanding of the maxim. Fortunately, historians are not left with the task of extracting Brewer’s meaning solely from his rambling opinion. More than any other justice of his tenure, 1890–1910, Brewer commented publicly on current events, particularly about the role of virtue and piety in public life. Justice Oliver Wendell Holmes, the Court’s great liberal, would write that Brewer’s “itch for public speaking and writing” made him “shudder [at] times.” Determining an understanding of the declaration requires a brief examination of Brewer himself.21 Justice Brewer embraced and exhibited values that were often associated with late Puritan ethic: honesty, civility, public piety, and civic responsibility. Involved in many religious and social causes, Brewer fervently believed that religion should exert an active influence on the culture. Typical of many of the nation’s elite, Brewer had a complex personal philosophy that integrated religious and political ideals that belie an ideological branding. Brewer was an economic conservative who believed in protecting private property and the accumulation of wealth. The high value he placed on individual liberty often translated into a laissez-faire perspective on a Court that became famous for criticizing economic regulation. Yet Brewer eschewed excessive wealth, the power of corporations, and the growing influence of materialism as much as he deplored the public taking of private property. “[W]e are in the presence of those dangers which come from unexampled material prosperity,” Brewer told an audience at Yale.22 Brewer also supported progressive causes, such as women’s

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suffrage and a more lenient immigration policy, while he opposed U.S. imperialism. In a series of dissents in the Chinese and Japanese Exclusion Cases, Brewer criticized the restrictive administrative procedures and the lack of judicial review of immigrants’ claims.23 Theologically, Brewer was a moderate Calvinist, eschewing doctrinaire Protestantism. Although personally devout, he acknowledged the imperfection of human perception and the possibility that other religious viewpoints could also be correct. He decried the history of religious persecutions and the ongoing conflict over creeds. While Brewer affirmed the “fundamental truths” of Christianity, he acknowledged that God could be called by different names or be revealed in different manifestations. “Many are the names by which He will be called.”24 I do not claim that any one truth expresses it in all its fullness, but that on which all religion rests is the Golden Rule. Upon that, Protestant and Catholic, Christian and Jew, Mohammedan and Buddhist, follower of Confucius and believer in Shintoism, can meet and in it find a working basis. It is, in fact, the foundation upon which all true religion must meet.25 Brewer also cast a discerning eye toward many practices committed in the name of Christianity. Religious ventures undertaken in God’s name were not immune from critical appraisal. “Christianity must stand like all other institutions, to be challenged, criticized, weighed and its merits and demerits determined.”26 In an address delivered to the Fiftieth Anniversary Meeting of the American Missionary Association, Brewer decried the early involvement of Christians in the African slave trade. In a later address to the Liberal Club in Buffalo, Brewer again chastised those who asserted the faultlessness of America’s actions as a Christian nation: To hear some talk you would think that all the influences going out from this Christian nation to the heathen have been Christian, purifying, elevating; but the fact is that even from Puritan New England there have gone more hogsheads of rum than missionaries, more gallons of whiskey than Bibles.27 Despite his willingness to criticize religious institutions, Brewer held a longstanding belief in the importance of religion in public life and of the Christian character of the United States and its civic institutions. “Christianity has entered into and become part of the life of this republic,” Brewer maintained, such that “the principles of christianity [serve as] the foundations of our social and political life.”28

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Brewer’s penchant for writing and public speaking led him to expound on the topic of America’s Christian nationhood and his understanding of the separation of church and state. Through two works in particular, American Citizenship (1902) and The United States a Christian Nation (1905), both of which were based on series of college lectures, Brewer elaborated on the themes presented in Holy Trinity. However, in neither work—even in the suggestively titled The United States a Christian Nation, which devotes approximately a hundred pages to the topic—is Brewer explicit as to his underlying interpretation of the maxim’s meaning or to its implications; the audience is still faced with reading between the lines. Initially, if not foremost, Brewer believed America to be Christian in a historic sense. The Holy Trinity opinion referred primarily to the historical relationship between America and Christianity, and Brewer’s later writings emphasized this same evidence.29 According to Brewer’s view of history, the American colonies were founded by devoutly religious people who sought to establish communities based on Christian principles. America’s “beginnings were in a marked and marvelous degree identified with Christianity.” The early colonial and state charters recognized the authority of the Christian religion and imposed a degree of religious fealty and obligation on the citizenry. As in Holy Trinity, Brewer’s later writings did not distinguish between the conflicting heritage of religious oppression and religious liberty when discussing the nation’s Christian founding. Both traditions pointed to the nation’s religious heritage. While Brewer rarely apologized for past religious intolerance, he neither condoned the earlier repression nor advocated a return to forced religious conformity. To Brewer, this mixed history represented more of an undisputed fact rather than a directive for the present. As he stated in one address, “You know that all through the early colonial life of the colonies there was a pronounced religious control (churches were supported by a public tax), a control that we would not tolerate to-day because by our national Constitution church and state are separate.”30 I do not mean that as a nation we should have a state religion, or that by secular means we support any form of Christianity. But I do mean to say that this American nation, from its first settlement at Jamestown to the present hour, is based upon and permeated by the principles of [the Bible]. The very first charters that were issued have as one of the reasons for their issue, that the Christian religion might be carried into this new continent, and all through our national life, from its beginning to the present time, there has been a constant recognition of the Bible as our sacred Book. So it is that we are regarded among the nations of the world as a Christian nation.31

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Brewer saw historic acts such as Virginia’s Dale’s laws and the infamous Connecticut blue laws as merely evincing the earlier religious connection, not as something necessarily to be commended or replicated. However, Brewer believed the United States to be more than just historically Christian. While America had changed considerably from the holy commonwealth of Puritan Massachusetts, it was still considered Christian. According to Brewer, modern American culture was visibly Christian in that Christian traditions and beliefs influenced daily customs and practices. In this sense, America was distinct from non-Christian cultures such as Jewish and Muslim societies. But at a deeper level, American culture was also Christian because “the dominant thought and purpose of the nation accord with the great principles taught by the founder of christianity”: I could show how largely our laws and customs are based upon the laws of Moses and the teachings of Christ; how constantly the Bible is appealed to as the guide of life and the authority in questions of morals; how the Christian doctrines are accepted as the great comfort in times of sorrow and affliction, and fill with the light of hope the services for the dead.32 Ultimately, identifying the origins of the relationship was unnecessary because of the indisputable fact that Christian values permeated American customs and institutions. Brewer also believed that America’s Christian culture represented the highest form of civilization. Like many of his contemporaries, this assertion went hand in glove with a belief in the superiority of Anglo-American culture. While many European nations—and even a few non-European nations—were characterized as Christian, the United States and, to a similar extent, Great Britain represented the archetypal Christian civilization because of the special combination of democratic freedoms and the dominance of that purest form of Christianity: Protestantism. “The most thoroughly Christian nation is the most civilized,” he liked to assert. Christian nations were the wealthiest, the most humanitarian, the most educated, and the most technologically advanced of civilizations and, consequently, were superior to all other nations. Beyond these more visible manifestations, however, Christian nations were the most civilized because they were based on and conducted their affairs according to the highest moral principles. According to Brewer, true civilization “lifts the soul above the body, and makes character the supreme possession. . . . It catches from the Divine One of Nazareth the nobility of helpfulness, and teaches that externals are not the man”:

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Now, whatever else may be said of christianity one thing is undisputed and indisputable—that christian nations manifest the highest forms of civilized life, and that among professedly christian nations those in which the principles of christianity have the utmost freedom and power occupy the first place. And surely nowhere has christianity such freedom and power as in this Republic.33 Despite his unwavering belief in the superiority of Anglo-American culture, Brewer recognized that America’s status as a Christian civilization carried with it certain obligations and responsibilities. First, under Brewer’s postcovenantal Calvinist theology, each nation has its own moral character derived from, though somewhat independent of, all of its citizens. “In so far, therefore, as the principles and precepts of Christianity develop righteousness in the individual, to a similar extent will a similar result be found in the life of the nation.” As such, Christian nations had a duty to maintain a high moral character, not unlike their citizens. Understandably, Brewer decried the political graft, spoils, and general corruption of the late Gilded Age.34 Second, Christian nations were obliged to be moral examples to the other nations of the world. America’s status as a Christian nation meant more than being judged by a high standard. A Christian nation, “in its dealings with other nations is bound to certain rules of conduct which it is universally conceded should be founded upon justice and righteousness.” Brewer recognized the obligation of Christian nations to promote Christian principles, and he strongly supported domestic and foreign missions. But such efforts were to be conducted by private organizations, and missionaries should respect other cultures and traditions. Moreover, true Christian nations promoted peace and were fair in their dealings with other peoples. Thus, Brewer opposed U.S. expansionism and especially the acquisition of new territory as a result of the Spanish-American War. Brewer’s firm belief in the obligation of Christians to promote international peace also led him to serve on the British-Venezuelan Boundary Commission of 1896.35 Brewer frequently interspersed his discussions of U.S. history and civilization with assertions of the providential nature of the American republic. “There is an overruling Providence which fashions and shapes human destiny [and] the destiny of nations as well as of individuals,” Brewer affirmed in a speech shortly before his death. “We may not be absolutely certain of the purposes of Providence, yet we can gain some knowledge of them from noticing events as they come and go, sure that in all the great movements of the nations and of humanity some supreme purpose is being accomplished.” Brewer spoke of the special nature of the American experiment and often referred to the “divine

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plan” of America being a leader in the world. It is not surprising that a man educated during the 1840s and 1850s would accept the concepts of America’s providential mission and its manifest destiny. However, Brewer’s speeches and writings reflect little willingness to take the paradigm any further. While Brewer often spoke in providential terms, he never advanced arguments like those expressed by groups such as the NRA that the United States represented God’s new Israel or was a singularly chosen land. America’s status as a Christian nation, even one with a special mission, did not mean that America’s future was preordained nor that the nation could act with impunity. Each citizen was obligated to work toward the realization of America’s greatness. “[A]ll this talk about destiny is wearisome,” Brewer stated in response to such claims.36 “We make our own destiny. We are not the victims, but the masters of fate, and to attempt to unload upon the Almighty responsibility for that which we choose to do is not only an insult to Him, but to ordinary human intelligence.”37 The bulk of Brewer’s references to Providence came within the particular context of America’s future as a nation of heterogeneous people. Brewer believed that America’s unique status as a nation of immigrants provided the best hope for overcoming ethnic divisions and ultimately uniting humanity. “Divine Providence” might have brought the diverse races and creeds together in America, but it was up to the virtuous citizen to help build the nation into a new and perfect city of Babel: Certainly, to me it is a supreme conviction, growing stronger and stronger as the years go by, that this is the one purpose of Providence in the life of this republic, and that to this end we are to take from every race its strongest and best elements and characteristics, and mold and fuse them into one homogeneous American life.38 Of course, the resulting culture would remain distinctly Anglo-Saxon and Christian. The challenge was to “mingle these heterogeneous elements into one homogeneous American people, and to so mingle that the good qualities of each shall be preserved and the bad qualities of each [be] cast out.” Thus, even though Brewer believed in the superiority of Anglo-American culture, he supported immigration and the integration of the various nationalities into American society.39 Brewer’s other expression of America’s providential role was as a world leader in peace and humanitarian causes. The U.S. republic, blessed with its democratic heritage and strengthened by the best qualities of its diverse citizenry, was destined to lead the world to peace and moral prosperity: If there be a purpose running through the life of the world, is it not plain that one thought in the divine plan was that in this republic

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should be unfolded and developed in the presence of the world the Christian doctrine of the fatherhood of God and the brotherhood of man?40 Finally, Brewer believed strongly that two important attributes of a Christian nation were a respect for religious liberty and the existence of the separation of church and state. Religious liberty—the right to believe and practice the religion of one’s choice—was at the heart of the freedoms epitomized by a Christian nation. “[E]ach [person] stands alone with his conscience,” Brewer maintained. “No one is in duty bound as a citizen to attend a particular church service, or indeed any church service. The freedom of conscience, the liberty of the individual, gives to every individual the right to stay away.” While at times he spoke in terms of the “toleration” of Judaism and Islam instead of equality, in other places he celebrated the religious and ethnic diversity that made America great. Immigrants, he asserted, “bring with them differences in habits and thoughts, in political hopes and convictions, differences of religious faith, and in many instances a lack of any faith. They come and are merged into the life of this nation, and are, as you and I, to make its destiny.” Clearly, Christian nations “stood for liberty and the rights of man” and accommodated other religious beliefs.41 Brewer also embraced the separation of church and state. On their own, mere expressions of support for church-state separation reveal little about a person’s underlying attitudes toward any particular relationship between religion and government. During the late nineteenth century, even religiously conservative groups like the NRA professed allegiance to the separation of church and state.42 Clearly, Brewer’s view of church-state separation differed from that of the Liberal League in that he embraced a strong religious influence in public life. A decision early in Brewer’s judicial career provides some insight into his understanding of the separation of church and state. Sitting on the Kansas Supreme Court in 1883, Brewer heard an appeal in a controversy between a Presbyterian church and a city over whether the former was entitled to a previously designated “church lot” when the town plat was approved. The city claimed that a dedication in the plat for a church could not be sustained because a religious purpose was not a “public purpose” under Kansas law. Brewer and the court held for the church in an opinion that mixed the rhetoric of churchstate separation with that of America’s Christian character. Brewer agreed that a church was not a public purpose. But that did not mean that the state could not recognize or protect a church’s role in society: We have no state church, and the settled rule in this country is of entire separation between state and church, and yet that separation is

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not so complete that the state is indifferent to the welfare and prosperity of the church. This is a Christian commonwealth. We believe that the best interests of both are promoted by enforcing [an] entire separation between the state and the church.43 Yet again, Brewer continued, it was “universally recognized that religion lies at the basis of morality, and that for the purpose of securing the best and most thoroughly extended morality it is fitting that religion and the church be recognized.” Thus, for Brewer, separation distinguished religion from other civil institutions and protected it from government interference, and he noted that “the state cannot assume control” over churches nor undertake “taxation or eminent domain” as it could with other institutions. But separation did not preclude the government from recognizing the benefits of religion or seeking to ensure its continued contribution to society. The nation’s commitment to “the absolute separation of church and state” and its designation as a “Christian commonwealth” were not only not in conflict, they were mutually reinforcing.44 Accordingly, Brewer’s overall understanding of separation—for example, he opposed financial support for religion but supported Sabbath laws and the limited use of the Bible in public school classrooms—became less important than the fact that he clearly saw the principle of separation as characteristic of a Christian nation.45 Not only was church-state separation consistent with the religious principles underlying a Christian nation, like religious freedom and diversity, it was one of the nation’s highest manifestations: Indeed, the very fact that [America] has no Established Church makes one of its highest credentials to the title of a christian nation. The great thought of the Master was that over the human soul there was no earthly sovereign.46 In view of the multitude of expressions in its favor, the avowed separation of church and state is a most satisfactory testimonial that it is the religion of the country, for a peculiar thought of Christianity is of a personal relation between man and his Maker, uncontrolled by and independent of human government.47 Consequently, Brewer’s abiding fealty to both individual and religious liberty led him to oppose most religiously based legislation. His own support for Sabbath laws rested chiefly on Sunday’s civil aspect as a uniform day of rest and the law’s protection of religious observances. Not surprisingly, based on his belief in the importance of religious institutions in society, Brewer wrote that Sunday laws were necessary to ensure “respectful treatment of [Christian] institutions

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and ordinances.”48 These sympathies, however, did not translate into support for the agendas of religious conservatives such as the NRA. In a direct slap at the NRA’s proposed Christian amendment, which supporters later insisted was validated by Holy Trinity, Brewer stated: That nation which seeks to enforce or support religion by legislative enactment fails to recognize the immortal truth contained in the Master’s words, “my kingdom is not of this world.” The very tolerance which some over-sensitive people deprecate is one of the best evidences that in the framing of our Constitution and the foundation of our nation there was recognized that truth which underlies christianity, to-wit, that love not law is the supreme thing. We enforce no religion; but the voice of the nation from its beginning to the present hour is in accord with the religion of Christ.49 Brewer recognized the challenges to modern society presented by the growth of cities and omnipresent vice and corruption. Yet he criticized those who believed that the way to reform moral behavior was through legislation. Those reformers wrongly believed that intemperance, “social impurity, gambling, and all sorts of vice are to be exterminated by statute and ordinance,” he stated. “Making men good by law has become a fad”: But reforming men by statute is simply the old appeal to force. It is only the idea of the Inquisition softened and refined, and yet it has become very popular. Every new manifestation of vice has been followed not so much by more earnest efforts to reform the individual as by the enactment of new statutes, with more stringent provisions—an additional twist of the legislative screw.50 You may, through the agency of the lawmaking power, remove temptations, take away opportunities and inducements to wrong, but you cannot legislate a man out of vice into virtue. No statute will write the ten commandments on the human heart or fill the soul with the gospel of love.51 Brewer’s skepticism of efforts to impose religious and moral standards through legislation led him to advocate limits on religious participation in the political process. In an 1897 address delivered to Yale Divinity School, Brewer urged the seminarians to restrict their involvement in political matters. The moment a minister appears at the state legislature or in the local city hall and claims the “right to prescribe the terms, the limits and character of legislation,” Brewer asserted, the average citizen is justified in telling him to “go back to

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your pulpit and leave matters of education and business and legislation to those who are trained therefore. . . . [I]f in the future the ministry is to remain a welcome and acknowledged power it can do so only as it stays in the pulpit.”52 Taken together, Brewer’s concern for religious liberty, his support for separation of religious and state functions, and his contempt for religious involvement in legislative matters cast a definite hue on his understanding of what it meant to be a Christian nation. Christian nations promoted freedom of belief and practice but refrained from promoting particular religious viewpoints or seeking religious conformity. While religion in general, and Christianity in particular, deserved respect and encouragement, even from the government, the government should not seek to further religious goals. Moreover, the ideal situation was one in which private religious leaders and organizations refrained from seeking to implement their world view through legislation. Brewer firmly believed that “no man is reformed by a statute.”53 In many respects, Brewer’s world view reflected the transformation in attitudes that had taken place among moderate evangelicals over the previous half-century. Disestablishment had allowed America’s Christian character to flourish. Neither the government nor its institutions were formally Christian. Neither was the government affirmatively to promote any religious doctrine. But it was inevitable that the government and culture would—and should— reflect the positive and affirming values that came from Christianity. The church’s influence on the culture should be indirect, by example and good works, not by seeking to impose morality or religious conformity through legislation or government policy. As measured as was Brewer’s interest in reconciling America’s Christian nationhood with disestablishment, it found little application in the decisions of the Supreme Court. During Brewer’s tenure, the Court considered a handful of Sunday law challenges and always upheld the laws on secular health-and-welfare grounds. In Hennington v. Georgia, Justice John Marshall Harlan affirmed that states possessed the authority “to enact laws to promote the order and to secure the comfort, happiness, and health of the people,” while noting that the statute was “none the less a civil regulation because the day on which the running of the trains is prohibited is kept by many under a sense of religious duty.” The Court also turned back an establishment clause challenge to a congressional grant to a Catholic hospital for the construction of a new building, with Justice Rufus Peckham stating that the case was simply one of “a secular corporation being managed by people who hold to the doctrine of the Roman Catholic Church.” Brewer joined in all of these opinions, never offering a complementary religious rationale. Brewer apparently had no difficulty with the Court’s reliance on secular justifications to resolve church-state disputes.54

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Little of Brewer’s nuanced understanding of the maxim was discernible from his Holy Trinity opinion. Holy Trinity was an obscure case, and Brewer’s Christian-nation declaration had appeared as dictum to the holding. The secular press barely acknowledged the decision, summarily reporting the holding without noting Brewer’s religious discussion.55 But a declaration of America’s Christian nationhood from the Supreme Court did not remain unnoticed for long, especially by religious conservatives who were battling the secularizing challenges to the culture. Pearl of Days, the official organ of the American Sabbath Union, which had advocated for the Blair bills and for increased prosecution of seventh-day observers, declared cheerfully that the decision “establishes clearly the fact that our Government is Christian.” The American Sabbath Union anticipated that the decision would lead to even greater enforcement of Sabbath regulations. The NRA, through its journal the Christian Statesman, also extolled the opinion, gleefully reprinting Brewer’s words: “Christianity is the law of the land! This is a Christian nation!” Hailing the decision as an affirmation of its members’ long-sought goal, one NRA spokesman wrote that the nation should now “make a constitutional recognition of God as the Source of all authority, the Lord Jesus Christ as the divinely-appointed Ruler of nations, the Bible as the fountain of all law, and of the true Christian religion. This is our first and highest duty.” Public criticism of Holy Trinity came primarily from religious skeptics, Jews, and Seventh-day Adventists.56 The Christian-nation declaration in Holy Trinity helped to spawn another round of commentary on the maxim. In an 1894 book, NRA apologist J. M. Foster argued that Holy Trinity provided an impressive “cyclus of evidence not easy to gainsay” that indisputably affirmed the nation’s Christian character. Armed now with a decision from “the highest judicial authority in the land,” Foster declared that judges were required to enforce God’s laws so as to bring about his kingdom on earth.57 The Christian-nation maxim received a boost the following year through the publication of Henry Campbell Black’s Handbook of American Constitutional Law. Black was a respected legal commentator and lexicographer, but his discussion of the maxim was uncritical, falling back on the authority of antebellum decisions and writings. Providing a conventional restatement of the maxim, Black wrote that “the whole purpose and policy of the law assume that we are a nation of Christians”: [M]any of our best civil and social institutions, and the most important to be preserved in a free and civilized state, are founded upon the Christian religion. . . . [W]hile toleration is the principle in religious

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matters, the laws are to recognize the existence of that system of faith, and our institutions are to be based on that assumption. Under Black’s view of the maxim, religious liberty provisions in state constitutions did not prohibit states from encouraging Christianity but only from engaging in the type of religious discrimination that coerced religious belief. States could foster Christian morality and protect it “against malicious attacks upon its source or authority,” an apparent nod to blasphemy laws’ enforcement. As his sole authority for the purpose of the First Amendment, Black quoted the passage from Story’s Commentaries that the “real object” of the amendment was to exclude rivalry among Christian sects, not to guarantee equality among all faiths. Black’s reliance on this excerpt was surprising considering the subsequent interpretations of the First Amendment by the Supreme Court, the writings of Cooley and Tiedeman, and the greater religious diversity in the nation since the publication of Story’s Commentaries. Finally, Black also embraced a view of the maxim that was popular among conservative commentators that a civilized and free society was only possible in a Christian state. Christianity was “essential to the preservation of [our] liberties and the permanence of [our democratic] institutions and to the success and prosperity of government.” Christianity and democracy were thus coextensive if not codependent.58 Complete as Black’s embrace of the Christian-nation maxim was, it did not translate well into practice. Although Black was willing to rely on early blasphemy and Sabbath cases for the underlying principle, he rejected their holdings as extreme. He insisted that Sunday laws tended to violate the religious liberty of religious minorities. If Sunday laws were enforced for religious reasons, they violated freedom of conscience; if enacted as sanitary regulations, then they should not be enforced on people who observed a different day of rest. Blasphemy, according to Black, was not an offense against religion but a form of libel and should require evidence of malicious intent. Finally, Black insisted that compulsory attendance at religious exercises in public schools violated the religious liberty of non-Protestant children. Thus, on one hand, Black claimed that the Christian-nation maxim authorized the state to favor and encourage Christianity. But when it came to putting the maxim into practice, Black was unwilling to go where the maxim led, reverting instead to notions of equality over those of religious preference and the toleration of dissenting faiths. In the end, Black’s view of disestablishment was not that dissimilar from those of Cooley and Tiedeman.59 The most detailed reconsideration of the Christian-nation maxim appeared in 1895 with the publication of Isaac Cornelison’s 400-page tome, The Relation of Religion to Civil Government. Cornelison was a Presbyterian minister who

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claimed in his introduction to sympathize with the “distinctive political views” of Jefferson and Madison regarding the separation of church and state. He rejoiced that the nation’s political institutions were “entirely separate from all ecclesiastical institutions.” But Cornelison’s introductory remarks were belied by the remainder of the book. Cornelison advanced what he described as the “indisputable fact” that “the civil institutions of this country are necessarily, rightly, and lawfully Christian.”60 Cornelison’s work shared similarities with the antebellum revisionist historians; he included an extensive review of unsubstantiated historical events, court decisions, and philosophical writings to prove the nation’s Christian character. Because America was a “Christian state,” public officials had a duty to favor Christianity over other faiths. Under Cornelison’s framework, other religions were to be tolerated and protected, but not accommodated if that would require the state to modify its distinctly Christian practices. Because “the government is Christian,” Cornelison insisted, “the anti-Christian must be regarded as in that respect an enemy.”61 While the theme of Cornelison’s book was that the government was “necessarily, rightly and lawfully Christian,” the overriding purpose of the work was to serve as a rejoinder to the secularizing trend in the law. Throughout the text, Cornelison criticized the jurisprudential trend “which requires the removal of every vestige of Christian basis, motive, and purpose from its laws”: Jurists and courts have gone so far as to affirm that the government can of right base no determination or requirement upon Christian principles; that, when it happens to require the observance of a Christian institution, such as the Lord’s day, it must be for reasons purely secular, and not in the least degree religious. Cornelison charged that the judicial forsaking of religious rationales was “unwarranted,” “ill-digested,” and based on “anti-Christian theory.” He expressly criticized Thomas Cooley’s efforts to qualify Justice Story’s rendition of the maxim and identify secular justifications for blasphemy and Sabbath laws. Like Lyman Atwater, Cornelison especially disliked the development of nuisance rationales. Blasphemy and sumptuary laws were necessarily religious, Cornelison insisted, and regardless of whether secular rationales existed, the government should base its actions “on purely Christian reasons.” Cornelison left no doubt that judges and lawyers should return to the religious theories that were popular during the antebellum era and willingly enforce laws for religious reasons.62 With the publication of Cornelison’s book, the late nineteenth-century revival of the Christian-nation maxim reached its apex. Both Cornelison’s and Foster’s works were written in response to the secularization of the law, and

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both unabashedly used Holy Trinity and antebellum court decisions to support their call for a counter-reformation in the law. It is impossible to gauge the influence of both works; read primarily in evangelical circles, their greatest impact was to substantiate the existing attitudes of religious conservatives. Black’s treatise, in contrast, was widely read in the mainstream legal community. The inconsistencies in Black’s discussion suggest that he had not thought through the practical applications of the maxim. His willingness to embrace the concept likely indicates the surface appeal of the maxim and the continuing influence of jurists like Story. Regardless of his motivation, Black’s uncritical analysis nurtured polemicists like Cornelison and Foster in their efforts to revive the maxim as a viable legal principle. Holy Trinity’s Christian-nation declaration also impacted the legislative arena. Shortly after the decision, labor unions and seventh-day observers, on one side, and religious conservatives, on the other, squared off in a controversy over the upcoming World’s Columbian Exposition in Chicago. The fair, being held in celebration of the 400th anniversary of Christopher Columbus’s exploration of America, was scheduled to be open on Sundays in order to accommodate laborers who commonly worked six days a week. As the planned Sunday openings became known, religious conservatives—the NRA, the American Sabbath Union, and the WCTU in particular—raised a storm of protest as they had done in Philadelphia eighteen years earlier.63 The objectors petitioned Congress to rescind a promised $5 million loan to the exposition unless its directors agreed to close the fair on Sundays. Several state legislatures followed suit, passing resolutions supporting the Sunday ban and directing their exhibits to close should the exposition remain open on Sundays. Petitions and remonstrances purportedly containing 2 million signatures poured into Washington during the spring of 1892, forcing Congress to hold hearings on the issue.64 For three days in April, the House World’s Fair Committee heard heated testimony from religious and civic organizations, the vast majority of which opposed the Sunday openings. Several witnesses asserted that the exposition should be closed on Sunday because America was a Christian nation, referring specifically to Holy Trinity as support. According to one newspaper report, Elliot F. Shepard, owner of the New York Mail & Express and a member of the American Sabbath Union, “made a plea for Sunday observance in general, and its enforcement at the World’s Fair in particular, on the ground that this is a ‘Christian Nation,’ and making extensive citations in support of this from the opinion of Mr. Justice Brewer.”65 The schedule of the Chicago exposition quickly became a cause célèbre in the spring, eclipsing more pressing matters. Senators and congressmen facing reelection in the fall felt pressure from groups that made a vote for Sunday

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closing the litmus test for support. So “bold and dictatorial” were some of the overtures, wrote the Boston Globe, that one senator was constrained to rise in his seat, last week, and protest that they practically amounted to political blackmail. In many cases they are accompanied by the threat that any member of Congress who shall vote any aid or appropriation for the Columbian Exposition, except with the Sabbatarian [sic] proviso, will be systematically boycotted at the polls by the denominational constituencies cited in the memorials.66 A bill conditioning the appropriation on the fair being closed on Sunday was introduced in Congress in July. During debate on the measure, most congressmen sought to avoid the religious issue by offering secular rationales for imposing Sunday closings.67 A handful, however, openly embraced the argument that being open on Sunday was inconsistent with America’s status as a Christian nation. Senator Joseph R. Hawley of Connecticut, noting that the country was a “Christian nation,” stated: The pervading sense of the Federal Constitution and the constitution of every solitary State and Territory is religious. They are founded on, and the common law is permeated with, the spirit of Christianity. Every statute book shows that it has been written by men who have a belief in the great universal doctrines of religion.68 Congress passed the conditional appropriation on August 4, and President Benjamin Harrison signed the bill into law the following day. At the same time, Congress also authorized an outright gift of $2.5 million to the exposition with an identical Sunday closing proviso. As the Washington Post reported upon the passage of the appropriations, “This disposes of one of the most stubbornly contested measures ever brought before Congress.”69 Religious conservatives celebrated the congressional vote on the Columbian Exposition as a major victory and began planning other courses of action, including the revival of the Christian amendment and a renewed push for uniform temperance and divorce laws. However, their success was short-lived once the exposition opened in Chicago the following spring. Except for the first two weeks of operation, the fair remained open on Sundays for the duration of the exposition, to the chagrin of the religious groups. With the federal appropriations already spent, the exposition directors apparently felt little compulsion to close the fair on Sundays.70 Religious conservatives did not give up, however, on their goal of Christianizing America. Following the Holy Trinity decision, the National Reform

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Association had its Christian amendment reintroduced in Congress. The NRA then organized a massive petition drive through its local chapters. Petitions again flowed into Washington, now citing Holy Trinity as authority for an amendment. By 1896, the number of petitions was so large that it forced Congress to hold hearings on the proposal.71 The House Judiciary Committee heard testimony on the proposed Christian amendment on March 11, 1896. As with the Blair bills, religious conservatives dominated the hearing, citing the need to bring America’s Constitution in line with its religious heritage.72 This time, proponents could point to the Supreme Court’s declaration in Holy Trinity as support for their proposal. A Reverend Stockton of the Presbyterian synod of Pennsylvania testified: The genius of our institutions, the trend of our national history, all law making and judicial interpretations of law, unite to proclaim that we are a Christian nation. And to settle it all, if you please, is the declaration of the Supreme Court, which, doubtless, is the mind of you all, where, in its judicial decision, it says that the form of oath universally prevailing, concluding with an appeal to the Almighty, and the custom of opening sessions of all deliberative bodies and most conventions with prayer, all united to proclaim that we are a Christian nation.73 Throughout the hearings, the presence of Holy Trinity was unmistakable. Yet, Justice Brewer’s opinion hurt the amendment’s chances as much as it helped. Several congressmen thought the amendment unnecessary, noting that the nation was already Christian, as demonstrated by Brewer’s declaration. Others voiced concern that the amendment would infringe on the rights of religious minorities and “conflict with the constitutional prohibition of the establishment of religion.” With support lacking in committee, the Christian amendment was tabled indefinitely.74 Following the vote, Presbyterian minister and scholar Sanford Cobb criticized the NRA for its efforts to amend the Constitution, calling them “idle and unnecessary” and appealing only to “superficial religious sentiment.” Such efforts to reverse the perceived secularizing trend were futile, Cobb wrote. “If the American people should insert the divine names in the constitution, that would not keep them from turning to infidelity, or make them a Christian nation after such perversion.”75 Debate over the nation’s loss of its religious moorings did not end with the third failure of the Christian amendment. Specific criticism of the secularizing trend in the law continued into the next century.76 But by 1900, the popular interest that had brought about the renewed Sabbath enforcement, the Blair proposals, and the Christian amendment was spent. Despite the brief revival of the maxim, only a small number of scholars and judges had responded to calls

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for a rediscovery of the law’s religious roots or its reapplication in practice. Many of the discussions seemed pro forma while others, as in Christopher Tiedeman’s treatise, had qualified all meaning out of the maxim. Even among the scholars and jurists who urged a revival of the maxim, there was no consensus on what the maxim meant or how it was to be applied in an increasingly diverse religious society. Commentators could not agree on whether the maxim was merely rhetorical or whether it called for the actual enforcement of laws according to a Christian standard. In the final analysis, Thomas Cooley’s and Henry Black’s understandings of the maxim’s application differed little from that of Tiedeman. Far from presenting a unitary perspective, the writings of the Gilded Age revealed a diversity of views that were themselves multifaceted and often contradictory. All of this commentary was taking place, however, within a context where courts had universally substituted secular for religious justifications for sumptuary laws and public school Bible reading. These commentators, Justice Brewer included, were chiefly searching for reconciliation with the undeniable secularization that had taken place in the law. In 1902, Presbyterian Sanford Cobb set out to examine the American experience of religious liberty and church-state relations. In many respects, Cobb’s book, The Rise of Religious Liberty in America, was similar to Isaac Cornelison’s work of seven years earlier, with Cobb providing an extensive overview (more than 500 pages) of the various religious impulses leading to the founding of the nation. Cobb celebrated the nation’s religious heritage, emphasizing the prominence of religious institutions in a nation that boasted separation of church and state. If one looked at the life, customs, and institutions of the United States, Cobb insisted, “we may safely declare that, if the American people be not a Christian nation, there is none upon the earth.”77 However, unlike Cornelison or the revisionist historians of the antebellum era, Cobb would go only so far in his embrace of America’s Christian nationhood. Instead of canonizing the founding fathers and sanctifying the Constitution, Cobb acknowledged the darker side of the nation’s religious experience, remarking that, even following the passage of the First Amendment, “the union and oppressive restrictions [remained] for many years, attended by more or less of [a] struggle, until the last vestige of old distinction was swept away: if, indeed, it can be said that they are all gone, even yet.” Yet, despite a history that had often included hostility toward non-Protestants, “full freedom was the law of the nation.” Although some might speak of America as a Christian nation, Cobb insisted that the appropriate paradigm for church and state was “[n]ot toleration, but equality,” which would put “all religions in the same relation to the law, under which there can be no preferences of one before another.”78

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In his concluding remarks, Cobb responded to critics on both sides of the Christian-nation debate, those who claimed that religious liberty “is not complete” and those who insisted that the nation “is unchristian.” Seeking a middle ground, Cobb rejected most understandings of the maxim, asserting that the law only recognized Christianity “as a social institution, necessary to the safety of society itself.” Majority rule, “a wise and just principle for the conduct of civil affairs,” could “have no place in the decision of faith.” The principle by which the government “abstains from all religious function[s],” leaving utmost liberty of choice and action to the people, was “in perfect harmony with the utterances of the great Founder of Christianity.” On the other hand, Cobb noted, if one examined “the religion of the American nation” and the “innumerable Christian temples and institutions of Christian charity,” then it was “impossible to fix the stigma of unchristian on the American nation.” Cobb’s view of the maxim, therefore, was one where Christianity exercised a generous and liberal influence on the culture, not one that imposed religious conformity through coercive measures. “[F]ar from being unchristian, this principle of American religious liberty is of the nature of pure Christianity, and represents the most Christian attitude that a civil government can take with reference to the religion of the people.”79 Sanford Cobb was representative of the prevailing religious attitude toward the church-state relations that had developed by 1900. Unwilling to reject the maxim out of hand, this perspective recognized the developments that had transpired over the nineteenth century. At most, America’s political and legal systems were Christian in the sense that they incorporated and fostered those generous Christian principles necessary for a superior civilization. But Cobb could only embrace the notion of America’s Christian nationhood by repudiating its more extreme versions. Cobb and his contemporaries renounced calls to prefer Christianity over other faiths or to enforce Christian norms through the law. Protestants had to reconcile their faith with the disestablishing trends. Equally important, Cobb’s book confirmed that a dramatic transformation had taken place in the legal relationship between Christianity and the republic. Responding to economic and demographic forces, judges had embraced scientific approaches to the law and, in the process, had exchanged religious rationales for secular ones. As part of that legal disestablishment, old, ill-defined notions of the underlying basis for civil government and law and of an obligation of the state to specially protect and advance Christianity had passed away. There can be little doubt that concern over the secularization of the culture and law motivated many of the events during the Gilded Age, including the Blair bills, the Christian amendment, the increase in Sunday enforcement, and the controversy over the Columbian Exposition. All of these incidents were

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efforts to recapture a perceived relationship between Christianity and the law that religious conservatives believed had been lost. But they were for naught. By the end of the century, the idea of America’s Christian nationhood was chiefly symbolic, having been replaced by more diverse and expansive notions of disestablishment. In the end, the late nineteenth-century revival of the maxim had no impact on the disestablishing trend in the law and public education. Most Protestants had become reconciled with the idea that, while the culture retained Christian influences, the nation’s civic institutions were secular.

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Conclusion

The nation that entered the twentieth century was significantly different from the nation of a hundred or even fifty years earlier. America’s geographical reach now spanned from the Atlantic to the Pacific oceans and included territorial possessions in Alaska, the central and eastern Pacific, and the Caribbean. The rise of industrialization and corporations had transformed the nation’s economy, replacing a postcolonial market and agricultural trading economy. And the nation’s population had increased twenty-fold between 1800 and 1900. Included within that population were millions of people who traced their roots to non-English-speaking countries of Europe and Asia and who did not practice the Protestantism of the nation’s forebears.1 Most significant, the republic had withstood a trying and costly test of war and had demonstrated the resiliency of its founding principles. The Constitution emerged from the Civil War tattered, but improved, thanks to the Thirteenth, Fourteenth, and Fifteenth Amendments, and it now promised guarantees of individual liberty and political and social equality. As Akhil Amar and Kurt Lash have shown, the Fourteenth Amendment, by building on slowly developing legal concepts, would implant these new constitutional ideals of liberty and equality in our lexicography, laying the foundation for the incorporation not only of the Bill of Rights but of expanded understandings of individual rights, including free exercise and the non-establishment of religion.2

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The developments traced in this book were more subtle but in many ways were as transformative as the more dramatic markers of change. Rather than being a static Protestant empire, nineteenth-century America experienced significant developments in church-state relations, though they did not always occur in a linear progression. The nation now possessed greater religious diversity than the founders could ever have envisioned, which in turn exerted pressures on the old religious arrangements. Political disestablishment—the ending of financial support and official favoritism for Protestant religion—put in motion by the events of the Revolution, had effectively been accomplished by 1800; the holdout New England states only delayed, but could not arrest the final outcome. On its own, political disestablishment was a highly significant achievement, an event previously unmatched in the world. But the ideals of religious liberty and disestablishment promised more than the mere political disengagement of religious institutions from the government. Members of the founding period, particularly those who embraced the Jeffersonian/Madisonian view of church-state separation, did not consider that religious freedom had been perfected in 1791. The impulses that brought about political disestablishment promised more. Despite that promise, the events of the early nineteenth century temporarily arrested further disestablishment of the nation’s institutions. An interesting counterfactual historical inquiry would be to consider how attitudes toward the nation’s religious character might have evolved differently had it not been for the Second Great Awakening and the reaction to the French Revolution. How would the nation have differed legally and culturally had the perspectives of Robert Dale Owen, Richard Johnson, and Abner Kneeland prevailed? But the rise of Protestant evangelicalism, moral reform societies, and revisionist histories during the antebellum era created an alternative vision of church-state relations, represented by the idea of America as a Christian nation, a vision that persisted in an ill-defined form throughout much of the century. Despite this alternative paradigm to church-state separation that reinforced the cultural dominance of evangelical Protestantism, the century witnessed a significant transformation in attitudes toward church-state relationships. A second, gradual disestablishment of the nation’s institutions occurred during the century. In part, this disestablishment came about due to forces— commercialism, immigration, religious diversity—that Protestants resisted or accommodated only grudgingly. But disestablishment also took place as Protestants sought to reconcile competing (and complementary) religious, legal, and democratic values. Coming together, these forces served as a catalyst for change in church-state relationships. One indicator of this transformation is the evolution in legal and popular attitudes toward the idea of the United States as a Christian nation and the

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law’s incorporation of Christian principles. This maxim, derived from higher-law and common-law traditions, became popular in the early years of the century as an alternate explanation for church-state arrangements. Though generalized notions of the maxim persisted throughout the century, understandings of the maxim evolved over time, particularly for many leading legal and religious figures. Justice Brewer’s misunderstood declaration was substantially different from the earlier writings of Lyman Beecher and Jasper Adams, and all of them differed from the remonstrance of Judge Alphonso Taft. As the century progressed, the maxim faced increasing criticism, particularly when it was offered as a rationale for legal decision making. Though affinity for America’s Christian nationhood as a historical or aspirational concept remained, the maxim had been discredited as a legal principle by the end of the century. As evidence of this shift, judges now went out of their way to dispute the authority of the Christian-nation maxim. Whereas, at midcentury, most judges would have declined to criticize the maxim, by the nineteenth century’s end they willingly characterized it as “absurd” or as an “erroneous theory.” The North Carolina Supreme Court, long a critic of the maxim, summed up that change in 1904: It is incorrect to say that Christianity is a part of the common law of the land. . . . The beautiful and divine precepts of the Nazarene do influence the conduct of our people and individuals, and are felt in legislation and in every department of activity. They profoundly impress and shape our civilization. But it is by this influence that it acts, and not because it is a part of the organic law, which expressly denies religion any place in the supervision or control of secular affairs.3 Or, as the North Dakota Supreme Court confirmed, once courts had validated Sunday laws on the basis that “this is a Christian nation,” but that “ground seems [now] to have been abandoned.”4 Not only had Sunday and other sumptuary laws evolved into secular-based regulations; more significant, the laws had lost their original purpose of promoting religious piety and reinforcing a Christian society. This transformation, effectively complete by 1900, was instrumental in the demise of the Christiannation maxim. As the maxim declined, more robust understandings of churchstate separation emerged, ranging from the views espoused by the Liberal League and Francis Abbot to those advocated by religious moderates like Samuel Spear and William Torrey Harris. By 1900, the religious perspective of the law had been replaced by a secular perspective. For the preceding sixty years, judges, lawyers, and legal scholars had developed and perfected secular rationales for areas of the law that had

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previously relied on religious-based justifications. Nuisance and state police power rationales had become accepted theories for regulating various forms of private and commercial conduct. Similar considerations had transformed public education. Bible reading, in decline but still allowed in many school districts, had undergone a significant challenge. Many large city school districts had discontinued the practice, and a handful of state courts had found religious exercises to be unconstitutional. In those locales where the practices persisted, they were commonly conducted in a perfunctory manner and uniformly justified on nonreligious grounds. Despite attempts to revive the maxim in the 1880s, the transformation in the law was already complete. The Christiannation maxim was dead as a legal principle and retained only symbolic significance as a cultural paradigm. The nation had emerged from its second period of disestablishment, which would have as profound an impact on twentiethcentury attitudes toward church and state as had the disestablishment of the founding period. The church-state transformation of the nineteenth century would lead to a third, constitutional and cultural disestablishment during the twentieth century. A full discussion of that transformation awaits another book. In brief, the causes of this third disestablishment would be many, with some influences being carried over from the previous century: an increasing religious diversity and growing respect for religious pluralism; the professionalization and standardization of public education and other civic institutions; the growth of scientific knowledge and a corresponding decline of a biblical world view; and advances in technology and the media. And, a leading factor in the third disestablishment would be the Supreme Court’s invigorated engagement in church-state issues after 1940. The Court’s adoption of the Jeffersonian/ Madisonian model of church-state separation and its clear alignment of disestablishment with constitutional principles would contribute to the constitutional and cultural disestablishment of the late twentieth century. But the twentiethcentury Court was standing on the shoulders of innumerable nineteenth-century judges, politicians, educators, and commentators. Since the 1940s, this engagement has invited criticism that the Court’s separationist decisions have deviated from a more limited, consensus understanding of church-state relationships of an earlier era, one that was represented by the Christian-nation maxim. For some, the Court’s modern holdings, acting as the vanguard of change, have led to a “naked public square” and a “culture of disbelief,” as two popular books charged.5 But, as suggested in the preceding chapters, 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. Notions of religious equality and

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government neutrality toward religion, of non-advancement of religion generally, and of a Constitution based on secular principles—all predate the 1940s. Irrespective of whether the modern Court’s church-state holdings have been correct, they have been in tune with a legal perspective that has dominated the American legal system for more than a hundred years, a perspective that spurns the legal recognition of Christianity and America’s Christian nationhood. That modern perspective would not have taken hold, however, had it not been for the second disestablishment that took place throughout the nineteenth century, a transformation that connected—and perfected—the delayed first disestablishment of the founding period to the constitutional disestablishment of the midtwentieth century. The second disestablishment is thus as important as the first for understanding modern church-state relations. It was, in the words of the indefatigable Lyman Beecher, the “last struggle of the separation of Church and State.”6

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Notes

INTRODUCTION

1. John M. Mason, “The Voice of Warning to Christians, on the Ensuing Election of a President of the United States,” in The Complete Works of John M. Mason, D.D., ed. Ebenezer Mason (New York: Baker & Scribner, 1849), 4:536–537; William Linn, Serious Considerations on the Election of a President: Addressed to the Citizens of the United States (Trenton, NJ: Sherman, Mershon & Thomas, 1800), 16. See Charles O. Lerche Jr., “Jefferson and the Election of 1800: A Case Study in Political Smear,” William and Mary Quarterly, 3rd ser., 5 (1948): 467–491; Frank Lambert, “‘God—and a Religious President . . . [or] Jefferson and No God’: Campaigning for a Voter-Imposed Religious Test in 1800,” Journal of Church and State 39 (1997): 769–789; Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case against Religious Correctness (New York: Norton, 1996), 88–104. 2. Abraham Bishop, Connecticut Republicanism: An Oration on the Extent and Power of Political Delusion (Philadelphia: Mathew Carey, Printer, 1800), 67. 3. Tunis Wortman, “A Solemn Address to Christians and Patriots” (1800), in Political Sermons of the American Founding Era, 1730–1805, ed. Ellis Sandoz (Indianapolis, IN: Liberty Fund, 1991), 1516, 1488. 4. Quoted in John F. Wilson and Donald L. Drakeman, eds., Church and State in American History, 2nd ed. (Boston: Beacon, 1987), 78–79. 5. Joseph Story, Commentaries on the Constitution of the United States, ed. Ronald D. Rotunda and John E. Nowak (1833; reprint, Durham, NC: Carolina Academic, 1987), §§ 988, 991. 6. Everson v. Board of Education, 330 U.S. 1, 13, 15–16 (1947) (declaring that Jefferson and Madison played “leading roles”).

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6–8

7. Ibid., 39, 33. “[T]he Remonstrance is at once the most concise and the most accurate statement of the views of the First Amendment’s author concerning what is ‘an establishment of religion.’” Ibid., 37. 8. Edward S. Corwin, “The Supreme Court as National School Board,” Law and Constitutional Problems 14 (1949): 3; John Courtney Murray, “Law or Prepossessions?” Law and Constitutional Problems 14 (1949): 23; James M. O’Neill, Religion and Education under the Constitution (New York: Harper, 1949); Mark DeWolf Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965). See also Joseph M. Snee, “Religious Disestablishment and the Fourteenth Amendment,” Washington University Law Quarterly (1954): 371; Wilber G. Katz, Religion and American Constitutions (Evanston, IL: Northwestern University Press, 1964); Chester James Antieau, Arthur T. Downey, and Edward C. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee, WI: Bruce, 1964). 9. See Everson, 8–15; ibid., 33–43 (Rutledge, J., dissenting); McCollum v. Board of Education, 333 U.S. 203, 213–225 (1948) (Frankfurter, J., concurring); ibid., 244–248 (Reed, J., dissenting); McGowan v. Maryland, 366 U.S. 420, 431–447 (1961); ibid., 484–495 (Frankfurter, J., concurring); Engel v. Vitale, 370 U.S. 421, 425–430 (1962); Abington Township School Dist. v. Schempp, 374 U.S. 203, 254–258, 266–276 (1963) (Brennan, J., concurring); Marsh v. Chambers, 463 U.S. 783, 787–789 (1983); Wallace v. Jaffree, 472 U.S. 38, 92–106 (Rehnquist, J., dissenting). 10. Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review 85 (2006): 563, 567. 11. Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849, 862; Erwin Chemerinsky, “History, Tradition, the Supreme Court, and the First Amendment,” Hastings Law Journal 44 (1993): 901, 980; Howe, The Garden and the Wilderness, 167–168; H. Jefferson Powell, “Rules for Originalists,” Virginia Law Review 73 (1987): 659, 660. 12. Larry Kramer, “Fidelity to History—and through It,” Fordham Law Review 65 (1997): 1627, 1628; Charles A. Miller, The Supreme Court and the Uses of History (Cambridge, MA: Belknap, 1969), 174. 13. Miller, The Supreme Court and the Uses of History, 175. 14. See, generally, Gordon S. Wood, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967). 15. Miller, The Supreme Court and the Uses of History, 172–173; Steven K. Green, “A ‘Spacious Conception’: Separationism as an Idea,” Oregon Law Review 85 (2006): 433. 16. See, for example, Robert S. Alley, Religion and the Constitution (Amherst, NY: Prometheus, 1999); Edwin S. Gaustad, Proclaim Liberty throughout All the Land: A History of Church and State in America (New York: Oxford University Press, 2003) (which refers to the nineteenth century as “A Quiet Court”). 17. Robert T. Handy, A Christian America: Protestant Hopes and Historical Realities, 2nd ed. (New York: Oxford University Press, 1984); Handy, Undermined Establishment: Church-State Relations in America, 1880–1920 (Princeton, NJ: Princeton University

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Press, 1991); Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002). 18. Hamburger, Separation of Church and State; Kurt T. Lash, “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1085–1154. 19. Reynolds v. United States, 98 U.S. 145, 164 (1879); Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892); Handy, A Christian America, 24–100; Handy, Undermined Establishment, 7–29; Morton Borden, Jews, Turks, and Infidels (Chapel Hill: University of North Carolina Press, 1984). 20. Howe, The Garden and the Wilderness, 27–29. 21. Harold J. Berman, “Religious Freedom and the Challenge of the Modern State,” Emory Law Journal 39 (1990): 149, 152; Berman, “Religion and Law: The First Amendment in Historical Perspective,” Emory Law Journal 35 (1986): 777, 788–789, 779. Berman wrote extensively on this subject; his most notable works are “The Influence of Christianity upon the Development of the Law,” Oklahoma Law Review 12 (1959): 86; The Interaction of Law and Religion (Nashville, TN: Abingdon, 1974); and Law and Revolution (Cambridge, MA: Harvard University Press, 1983). 22. Kramnick and Moore, Godless Constitution; Hamburger, Separation of Church and State; Gerard V. Bradley, Church-State Relationships in America (New York: Greenwood, 1987). 23. Handy, A Christian America, 159–184; Noah Feldman, Divided by God (New York: Farrar, Straus and Giroux, 2005), 50–185. 24. See Max Weber, The Sociology of Religion (Boston: Beacon, 1963); Peter L. Berger, The Sacred Canopy (Garden City, NY: Doubleday, 1969); C. John Sommerville, “Secular Society/Religious Population: Our Tacit Rules for Using the Term ‘Secularization,’” Journal for the Scientific Study of Religion 36 (1998): 249–253; David Yamane, “Secularization on Trial: In Defense of a Neosecularization Paradigm,” Journal for the Scientific Study of Religion 36 (1997): 109–122; Roy Wallis and Steve Bruce, “Secularization: The Orthodox Model,” in Religion and Modernization, ed. Steve Bruce (Oxford: Clarendon, 1992), 8–30. 25. See Charles Greeley, “The Christian Evolution of a Secular State,” New Englander and Yale Magazine 51 (Oct. 1889): 275–283; Jon Butler, “Jack-in-the-Box Faith: The Religion Problem in Modern American History,” Journal of American History 90 (2004): 56 (noting, “Secularization did indeed advance in America after 1870”).

CHAPTER

1

1. Gordon S. Wood, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969); Bailyn, Ideological Origins. 2. Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton, NJ: Princeton University Press, 1994); Marsh v. Chambers, 463 U.S. 783 (1983); Lynch v. Donnelly, 465 U.S. 668 (1984); Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); Gary Demar, America’s Christian History: The Untold Story (Atlanta, GA: American Vision, 1993); Mark A. Noll, Nathan

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O. Hatch, and George M. Marsden, The Search for Christian America (Westchester, IL: Crossway, 1983); Kramnick and Moore, Godless Constitution. 3. John Adams, “Thoughts on Government” (1776), in American Political Writing during the Founding Era 1760–1805, ed. Charles S. Hyneman and Donald S. Lutz (Indianapolis, IN: Liberty, 1983), 1:403; John Tucker, “An Election Sermon,” ibid., 1:162. 4. John Locke, Two Treatises of Government, ed. Peter Laslett (New York: The New American Library, 1965), 408–412; Jean-Jacques Rousseau, The Social Contract(1762), ed. Lester G. Crocker (New York: Pocket Books, 1964); John Locke, A Letter on Toleration, ed. Raymond Klibansky (Oxford: Clarendon, 1968), 65–71; Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford University Press, 1989), 57–58. 5. Charles-Louis Montesquieu, Spirit of the Laws (1748), in The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 5:12; Henry St. John Bolingbroke, The Philosophical Writings, 1754–1777 (New York: Garland, 1977); Allen Jayne, Jefferson’s Declaration of Independence (Lexington: University of Kentucky Press, 1998), 19–40; Marc M. Arkin, “‘The Intractable Principle’: David Hume, James Madison, Religion, and the Tenth Amendment,” American Journal of Legal History 39 (1995): 148; John M. Murrin, “Fundamental Values, the Founding Fathers, and the Constitution,” in To Form a More Perfect Union: The Critical Ideas of the Constitution, ed. Herman Belz, Ronald Hoffman, and Peter J. Albeit (Charlottesville: University Press of Virginia, 1992), 22–23, 28–31; Bailyn, Ideological Origins, 27–29, 35–54; Wood, Creation of the American Republic, 152–153, 291–305. 6. Bailyn, Ideological Origins, 41; Kramnick and Moore, Godless Constitution, 80–82; Isaac Kramnick, “The Discourse of Politics in 1787: The Constitution and Its Critics on Individualism, Community, and the State,” in Belz et al., To Form a More Perfect Union, 179–181; Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty, 2nd ed. (London: J. Johnson, 1771), 53, 55, 77–78. 7. Bailyn, Ideological Origins, 41; James Burgh, Crito; or, Essays on Various Subjects, 2 vols. (1766, 1767), 1:x–xi, 7; 2:119; Carla H. Hay, James Burgh, Spokesman for Reform in Hanoverian England (Washington, DC: University Press of America, 1979), 42–43; Oscar Handlin and Mary Handlin, “James Burgh and American Revolutionary Theory,” Proceedings of the Massachusetts Historical Society 73 (1961): 38–57; Kramnick and Moore, Godless Constitution, 82–83. 8. Bailyn, Ideological Origins, 22–54. 9. Hamburger, Separation of Church and State, 53. 10. Ibid., 54; Locke, Letter on Toleration, 85, 87; Kramnick and Moore, Godless Constitution, 67–87. 11. Gad Hitchcock, “Election Sermon” (1774), in Hyneman and Lutz, American Political Writing, 1:288. 12. James Otis, “The Rights of the British Colonies Asserted and Proved” (1764), in Tracts of the American Revolution, 1763–1776, ed. Merrill Jensen (Indianapolis, IN:

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Bobbs-Merrill, 1967), 32–33; John Dickinson, “An Address to the Committee of Correspondence in Barbados” (1766), in The Writings of John Dickinson, ed. Paul Leicester Ford (Philadelphia: Historical Society of Pennsylvania, 1895), 1:262. 13. Cornelia Geer Le Boutillier, American Democracy and Natural Law (New York: Columbia University Press, 1950), 110; Benjamin F. Wright Jr., American Interpretations of Natural Law (Cambridge, MA: Harvard University Press, 1931), 67–78; Bailyn, Ideological Origins, 185–187; Wood, Creation of the American Republic, 262–266, 291–296. 14. Bailyn, Ideological Origins, 32–33; Wood, Creation of the American Republic, 60; Harry S. Stout, “Religion, Communications, and the Ideological Origins of the American Revolution,” William and Mary Quarterly, 3rd ser., 24 (1977): 535–536; James T. Kloppenberg, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse,” Journal of American History 74 (June 1987): 9–33; Jon Butler, Awash in a Sea of Faith: Christianizing the American Republic (Cambridge, MA: Harvard University Press, 1990), 195–212; Murrin, “Fundamental Values,” 11–21. 15. Bailyn, Ideological Origins, 32–34; Edmund S. Morgan, “The Puritan Ethic and the Coming of the American Revolution,” William and Mary Quarterly, 3rd ser., 24 (1967): 3–18; Perry Miller, “The Moral and Psychological Roots of American Resistance,” in The Reinterpretation of the American Revolution 1763–1789, ed. Jack P. Greene (New York: Harper & Row, 1968), 251–274; Mark Valeri, “The New Divinity and the American Revolution,” William and Mary Quarterly, 3rd ser., 46 (1989): 741–769; David D. Hall, “Religion and Society: Problems and Reconsiderations,” in Colonial British America, ed. Jack P. Greene and J. R. Pole (Baltimore, MD: Johns Hopkins University Press, 1984), 323. 16. William Warren Sweet, Revivalism in America (Gloucester, MA: Peter Smith, 1965), 24–43; William G. McLoughlin, Revivals, Awakenings, and Reform (Chicago: University of Chicago Press, 1978), 45–97; Alan E. Heimert, Religion and the American Mind: From the Great Awakening to the Revolution (Cambridge, MA: Harvard University Press, 1966); Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (Baton Rouge: Louisiana State University Press, 1990); Gary T. Amos, Defending the Constitution (Brentwood, TN: Wolgemuth and Hyatt, 1989); Francis A. Schaeffer, A Christian Manifesto (Westchester, IL: Crossway, 1981); Benjamin Hart, Faith and Freedom: The Christian Roots of American Liberty (San Bernardino, CA: Here’s Life, 1988), 19, 235, 274–275, 319. 17. Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78 (1984): 189, 192; Hall, “Religion and Society,” 323; John M. Murrin, “Religion and Politics in America from the First Settlements to the Civil War,” in Religion and American Politics, ed. Mark A. Noll (New York: Oxford University Press, 1990), 26–27; Perry Miller, Errand into the Wilderness (Cambridge, MA: Belknap, 1984), 167–183; Wood, Creation of the American Republic, 60; Harry S. Stout, The New England Soul: Preaching and Religious Culture in Colonial New England (New York: Oxford University Press, 1986); Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989); Nathan O. Hatch, The Sacred Cause of Liberty (New Haven, CT: Yale University Press, 1977), 70.

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18. Ernest Lee Tuveson, Redeemer Nation: The Idea of America’s Millennial Role (Chicago: University of Chicago Press, 1968), 102–103; Nathan O. Hatch, Sacred Cause of Liberty: Republican Thought and the Millennium in Revolutionary New England (New Haven, CT: Yale University Press, 1977), 21–54; Stout, New England Soul, 166–181; Nathan O. Hatch, “The Origins of Civil Millennialism in America: New England Clergymen, War with France, and the Revolution,” in Colonial America, ed. Stanley N. Katz and John M. Murrin (New York: Knopf, 1983), 507–515; Patricia U. Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial America (New York: Oxford University Press, 1986), 199–216; Elisha Williams, “The Essential Rights and Liberties of Protestants” (1744), in Political Sermons of the American Founding Era, 1730–1805, ed. Ellis Sandoz (Indianapolis, IN: Liberty Fund, 1991), 58; Samuel Sherwood, “Scriptural Instructions to Civil Rulers” (1774), ibid., 382–383, 386, 388. 19. Samuel Langdon, “Government Corrupted by Vice, and Recovered by Righteousness,” in Edmund S. Morgan, Puritan Political Ideas (Indianapolis, IN: Bobbs-Merrill, 1976), 352; Nicholas Street, “The American States Acting Over the Part of the Children of Israel in the Wilderness and Thereby Impeding Their Entrance into Canaan’s Rest” (1777), in Conrad Cherry, God’s New Israel, Religious Interpretations of American Destiny (Englewood Cliffs, NJ: Prentice-Hall, 1971), 69–71; Wood, Creation of the American Republic, 114–118. 20. Street, “The American States Acting Over the Part of the Children of Israel,” 78. 21. Samuel Sherwood, “The Church’s Flight into the Wilderness” (1776), in Sandoz, Political Sermons, 523–524. 22. John Tucker, “An Election Sermon” (1771), in Hyneman and Lutz, American Political Writing, 1:161–162; Samuel Sherwood, “Scriptural Instructions to Civil Rulers” (1774), in Sandoz, Political Sermons, 382–383: Daniel Shute, “Election Sermon” (1768), in Hyneman and Lutz, American Political Writing, 1:112. 23. Samuel Cooper, D.D., “A Sermon Preached before His Excellency John Hancock, Esq., Governour” (Oct. 25, 1780), in Sandoz, Political Sermons, 631. 24. Ezra Stiles, “The United States Elevated to Glory and Honour,” in God’s New Israel, 85, 86, 83; Ruth H. Bloch, Visionary Republic: Millennial Themes in American Thought, 1756–1800 (New York: Cambridge University Press, 1985), 94. 25. John Adams, “A Dissertation on the Canon and Feudal Law” (1765), quoted in Tuveson, Redeemer Nation, 25; Charles F. Adams, ed., Letters of John Adams Addressed to His Wife (Boston: Little, Brown, 1841), 82–83. 26. Edwin Scott Gaustad, Faith of Our Fathers: Religion and the New Nation (San Francisco: Harper & Row, 1987), 76; John F. Berens, Providence & Patriotism in Early America, 1640–1815 (Charlottesville: University Press of Virginia, 1978), 51–111; Charles C. Cohn, “The ‘Liberty or Death’ Speech: A Note on Religion and Revolutionary Rhetoric,” William and Mary Quarterly, 3rd ser., 38 (1981): 707–717; Cherry, God’s New Israel, 65. 27. Ruth H. Bloch, “Religion and Ideological Change in the American Revolution,” in Noll, Religion and American Politics, 50; Bloch, Visionary Republic, chap. 4; Isaac Kramnick, “The ‘Great National Discussion’: The Discourse of Politics in 1787,” William and Mary Quarterly, 3rd ser., 45 (1988): 1–15.

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28. George M. Marsden, “America’s ‘Christian’ Origins: Puritan New England as a Case Study,” in John Calvin: His Influence in the Western World, ed. W. Stanford Reid (Grand Rapids, MI: Zondervan, 1982), 253. 29. Wood, Creation of the American Republic, 60. 30. Murrin, “Fundamental Values,” 25; Jon Butler, “Enthusiasm Described and Decried: The Great Awakening as Interpretative Fiction,” Journal of American History 69 (1982): 305–325; Catherine L. Albanese, Sons of the Fathers: The Civil Religion of the American Revolution (Philadelphia: Temple University Press, 1976), 6; Mark Douglas McGarvie, One Nation under Law: America’s Early National Struggles to Separate Church and State (DeKalb: Northern Illinois University Press, 2004), 47. 31. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 29–53, 105–106; Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), 1–7; Edward L. Bond, Damned Souls in a Tobacco Colony: Religion in Seventeenth-Century Virginia (Macon, GA: Mercer University Press, 2000), 129–138; Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776–1787 (Charlottesville: University of Virginia Press, 1977), 3–4. 32. William Lee Miller, The First Liberty: Religion and the American Republic (New York: Knopf, 1986), 5; Buckley, Church and State, 12–15; Bond, Damned Souls, 139, 152–154. 33. Curry, First Freedoms, 64–72; Levy, Establishment Clause, 10–15; McGarvie, One Nation under Law, 100–109; John Webb Pratt, Religion, Politics, and Diversity: The ChurchState Theme in New York History (Ithaca, NY: Cornell University Press, 1967), 49–78. 34. Ronald M. Peters Jr., The Massachusetts Constitution of 1780 (Amherst: University of Massachusetts Press, 1978), 31; William G. McLoughlin, New England Dissent 1630–1830 (Cambridge, MA: Harvard University Press, 1971), 1:124–127; John D. Cushing, “Notes on Disestablishment in Massachusetts, 1780–1833,” William and Mary Quarterly, 3rd ser., 26 (1969): 169–171; Curry, First Freedoms, 105–133; Levy, Establishment Clause, 15–24. 35. See J. William Frost, A Perfect Freedom: Religious Liberty in Pennsylvania (New York: Cambridge University Press, 1990). 36. See, generally, Buckley, Church and State; Bond, Damned Souls; Curry, First Freedoms; McLoughlin, New England Dissent; Pratt, Religion, Politics, and Diversity. 37. Curry, First Freedoms, 133, 222; Levy, Establishment Clause, 25–62. 38. Reprinted in McLoughlin, New England Dissent, 597; Carl Bridenbaugh, Miter and Scepter (New York: Oxford University Press, 1962), 309–311. 39. Worcestriensis, Number IV, in Hyneman and Lutz, American Political Writing, 450. 40. Ibid., 452–453. 41. McLoughlin, New England Dissent, 454–488, 512–530, 591–635. 42. McGarvie, One Nation under Law, 138–142; T. Jeremy Gunn, A Standard for Repair: The Establishment Clause, Equality, and Natural Rights (New York: Garland, 1992), 78–81. 43. William Tennent, Speech, on the Dissenting Petition, Jan. 11, 1777 (CharlesTown, [SC]: Peter Timothy, Printer, 1777), 5, 7.

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44. Ibid., 8–9, 6. 45. Ibid., 14. 46. Ibid., 15–16. 47. Ibid., 15, 5–6. 48. Ibid., 5. 49. Francis Newton Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the . . . United States of America (Washington, DC: Government Printing Office, 1909), 3081, 3099, 3739; Hale v. Everett, 53 N.H. 9, 110 (1868); Curry, First Freedoms, 134–192. 50. Thorpe, Federal and State Constitutions, 1689, 1889. Connecticut, which did not draft a constitution until 1818, converted its 1662 royal charter into an interim governing document with language stating, “The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State.” Benjamin P. Poore, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the . . . United States of America (Washington, DC: Government Printing Office, 1877), 257. 51. Thorpe, Federal and State Constitutions, 777. 52. Ibid., 568, 1686. See also New Hampshire Constitution: “all government of right originates from the people, is founded in consent, and instituted for the general good.” Ibid., 2453. 53. Murrin, “Religion and Politics,” 29–32; Marsden, “America’s ‘Christian’ Origins,” 251–253. 54. Curry, First Freedoms, 134–192; Levy, Establishment Clause, 25–62. 55. Herbert J. Storing, ed., The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981), 3:12. 56. Religious tests: Delaware, Massachusetts, New Jersey, North Carolina, Pennsylvania, South Carolina; free exercise restrictions on non-Protestants or nonChristians: Maryland, New Hampshire, New Jersey, Pennsylvania, South Carolina; clergy disqualifications: Delaware, Georgia, New York, South Carolina. Thorpe, Federal and State Constitutions; Gaustad, Faith of Our Fathers, 161–174. 57. Bloch, “Religion and Ideological Change,” 53–54. Religious tests for office holding were removed by the Delaware Constitution of 1792, the South Carolina Constitution of 1790, and the Vermont Constitution of 1791. The 1791 Vermont Constitution also deleted the religious acknowledgment from its preamble. Thorpe, Federal and State Constitutions, 580, 3264, 3762. 58. Curry, First Freedoms, 134–192; Frost, Perfect Freedom, 60–78 (noting that, after a restrictive trend during the Revolutionary War with the enforcement of religious behavioral laws, Pennsylvania adopted a constitution in 1790 that was “radical” on issues of disestablishment and toleration). 59. Curry, First Freedoms, 34–192. 60. Art. VI, New Hampshire Constitution of 1784, in Thorpe, Federal and State Constitutions, 2454. 61. Muzzy v. Wilkins, 1 Smith’s 1 (N.H. 1803); Barnes v. First Parish in Falmouth, 6 Mass. 401 (1810); Pearce v. Atwood, 13 Mass. 324 (1816). See Alice Morse Earle, The

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Sabbath in Puritan New England (New York: Scribner’s, 1891), 66–76; “An Act for the Better Observation of the Lord’s Day, Commonly Called Sunday,” Laws of SouthCarolina (1712), in The Earliest Printed Laws of South Carolina 1692–1734, ed. John D. Cushing (Wilmington, DE: Glazier, 1978), 1:232; John D. Cushing, ed., Acts and Laws of New Hampshire, 1680–1726 (Wilmington, DE: Glazier, 1978), 58. 62. Thorpe, Federal and State Constitutions, 3255–3256. 63. Ibid., 3256–3257; McGarvie, One Nation under Law, 141–144; Curry, First Freedoms, 150. 64. Curry, First Freedoms, 31–53. 65. Thorpe, Federal and State Constitutions, 1689–1690; Curry, First Freedoms, 153–158. 66. See “Act for Establishing Religious Freedom” (1785), in Kurland and Lerner, Founders’ Constitution, 5:84; Curry, First Freedoms, 135–148; Buckley, Church and State, 144–172. 67. Curry, First Freedoms, 152–153; Levy, Establishment Clause, 47–49; Joel A. Nichols, “Religious Liberty in the Thirteenth Colony: Church-State Relations in Colonial and Early National Georgia,” New York University Law Review 80 (2005): 1693–1772; Thorpe, Federal and State Constitutions, 789, 800–801. 68. Thorpe, Federal and State Constitutions, 3752; Curry, First Freedoms, 188–189; McLoughlin, New England Dissent, 2:795–812. 69. Madison to William Bradford, Dec. 1, 1773; Jan. 24, 1774, in James Madison on Religious Liberty, ed. Robert S. Alley (Amherst, NY: Prometheus, 1985), 46–48; see, generally, Bond, Damned Souls. 70. Curry, First Freedoms, 135; Miller, The First Liberty, 5–6; Buckley, Church and State, 17–70; Gunn, Standard for Repair, 82. 71. “Act for Establishing Religious Freedom,” in Kurland and Lerner, Founders’ Constitution, 5:84, document 44; Jefferson, Autobiography, ibid., document 45; Buckley, Church and State, 46–47. 72. Buckley, Church and State, 50–62. 73. Curry, First Freedoms, 139–140; Buckley, Church and State, 108, 188–189. 74. Madison’s Memorial and Remonstrance was published in the Virginia Journal on Nov. 17, 1785, and is reprinted in Kurland and Lerner, Founders’ Constitution, 5:82, document 43; Curry, First Freedoms, 134–148. 75. Kurland and Lerner, Founders’ Constitution, 5:103; Mark A. Noll, One Nation under God? (San Francisco: Harper & Row, 1988), 66–67. 76. Miller, The First Liberty, 33. 77. Madison to Madison, Jan. 6, 1785, in Alley, James Madison on Religious Liberty, 66. 78. Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (Grand Rapids, MI: Baker Book House, 1988), 216–221; Daniel L. Dreisbach, “A New Perspective on Jefferson’s Views on Church-State Relations: The Virginia Statute for Establishing Religious Freedom in Its Legislative Context,” American Journal of Legal History 35 (1991): 172; Dreisbach, “Thomas Jefferson and Bills Number 82–86 of the Revision of the Laws of Virginia, 1776–1786: New Light on the Jeffersonian

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Model of Church-State Relations,” North Carolina Law Review 69 (1990): 159. See, generally, Bradley, Church-State Relationships. 79. Dreisbach, “A New Perspective,” 196; Buckley, Church and State, 66–68, 75–76, 109–111. 80. Peters, Massachusetts Constitution, 31; McLoughlin, New England Dissent, 124–127; Charles Francis Adams, ed., The Works of John Adams, 10 vols. (Boston: Little, Brown, 1850–1856), 2:399. 81. Worcestriensis, “Number IV,” in Hyneman and Lutz, American Political Writing, 452. 82. Isaac Backus, “An Appeal to the Public for Religious Liberty” (1773), in Sandoz, Political Sermons, 334–335, 356–359; Backus, Government and Liberty Described and Ecclesiastical Tyranny Exposed (Boston: Powars and Willis, Oct. 1778), 11; McLoughlin, New England Dissent, 614. 83. Oscar Handlin and Mary Handlin, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge, MA: Belknap, 1966), 190–201, 202–323. 84. Phillips Payson, “A Sermon,” in Hyneman and Lutz, American Political Writing, 529–530. 85. Backus, Government and Liberty Described, 6, 13, 11. 86. Ibid., 12–13. 87. Backus, Policy as Well as Honesty, Forbids the Use of Secular Force in Religious Affairs (Boston: Draper and Folsom, 1779), 7. 88. Backus, “An Appeal to the Public for Religious Liberty,” 334–335; Boston Gazette, Jan. 26, 1778, 1. 89. Boston Gazette, Nov. 2, 1778, 1. 90. Ibid., Dec. 28, 1778, 1. 91. Ibid., Nov. 2, 1778, 1; Jan. 18, 1779, 1. 92. Adams, Works, 8:55. 93. Robert J. Taylor, ed., Massachusetts: Colony to Commonwealth (Chapel Hill: University of North Carolina Press, 1961), 116–119. 94. Instructions of Gorham and Instructions of Stoughton, ibid., 119–123; Instructions of Sandisfield, in Handlin and Handlin, Popular Sources, 419. 95. Jacob C. Meyer, Church and State in Massachusetts from 1740 to 1833 (1930; reprint, New York: Russell & Russell, 1968), 105–107; Handlin and Handlin, Popular Sources, 441–472. 96. Thorpe, Federal and State Constitutions, 1889–1890; Handlin and Handlin, Popular Sources, 442–443. 97. Thorpe, Federal and State Constitutions, 1890; Handlin and Handlin, Popular Sources, 443; McLoughlin, New England Dissent, 560, 563. 98. Samuel Eliot Morison, “The Struggle over the Adoption of the Constitution of Massachusetts, 1780,” Massachusetts Historical Society Proceedings 50 (1916–1917): 353, 371; Peters, Massachusetts Constitution, 50–54; Meyer, Church and State in Massachusetts, 107–108.

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99. Robert J. Taylor, “Construction of the Massachusetts Constitution,” Proceedings of the American Antiquarian Society 90 (1980): 331–332; John Witte Jr., “A Most Mild and Equitable Establishment of Religion: John Adams and the Massachusetts Experiment,” in Religion and the New Republic, ed. James Huston (Lanham, MD: Rowman & Littlefield, 2000), 9–15. 100. Boston Gazette, Dec. 14, 1778, 1. 101. See ibid., Oct. 23, 1780, 1; Independent Chronicle, Apr. 6, 1780, 1; McLoughlin, New England Dissent, 617–624; “Return of Ashby (Middlesex County),” in Taylor, Massachusetts: Colony to Commonwealth, 151. 102. Boston Gazette, Oct. 23, 1780, 1. 103. Independent Ledger, May 8, 1780, 1. 104. “Return of Boston,” May 12, 1780, in Taylor, Massachusetts: Colony to Commonwealth, 146, 149–150. 105. Independent Ledger, May 15, 1780, 4; Boston Gazette, July 3, 1780, 1. 106. Independent Ledger, May 8, 1780, 1; Boston Gazette, July 3, 1780, 1. 107. Morison, “Struggle over Adoption,” 411; McLoughlin, New England Dissent, 629–633. 108. Curry, First Freedoms, 217.

CHAPTER

2

1. Samuel E. Morison, Sources and Documents Illustrating the American Revolution, 1764–1788, and the Formation of the Federal Constitution (New York: Oxford University Press, 1965), 157–160; Wright, American Interpretations, 116–118; Murrin, “Fundamental Values,” 21–25; Jayne, Jefferson’s Declaration, 150–151. 2. Locke, Letter on Toleration, 65–71; Joseph Priestley, An Essay on the First Principles of Government, 2nd ed. (London: J. Johnson, 1771), 52–69; James Burgh, Crito, reprinted in Kramnick and Moore, Godless Constitution, 73–85. 3. Butler, Awash in a Sea of Faith, 196–197; Morison, Sources and Documents, 178–186. 4. Derek H. Davis, Religion and the Continental Congress 1774–1789 (New York: Oxford University Press, 2002), 73–91, 144–148. 5. See John Witte Jr., Religion and the American Constitutional Experiment (Boulder, CO: Westview, 2000), 57–60; Davis, Religion and the Continental Congress, 158–161. 6. Davis, Religion and the Continental Congress, 35, 202. 7. Davis, Religion and the Continental Congress, 227; also see Ronald A. Smith, “Freedom of Religion and the Land Ordinance of 1785,” Journal of Church and State 24 (1982): 589. 8. Robert Yates, Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787 (Albany, NY: Websters and Skinners, 1821); James Madison, Notes of Debates in the Federal Constitution of 1787 (Athens: Ohio University Press, 1984), 209–211; Max Farrand, The Records of the Federal Constitution of 1787 (New Haven, CT: Yale University Press, 1911). Admittedly, the records of the

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Constitutional Convention and the First Congress are incomplete and unreliable. See James H. Huston, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1–39. 9. Tench Coxe, “An Examination of the Constitution,” in Kurland and Lerner, Founders’ Constitution, 4:639. 10. Benjamin Rush to Richard Price, Oct. 15, 1785, and Apr. 22, 1786, in Kurland and Lerner, Founders’ Constitution, 4:636; Noah Webster, “On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office” (May 1787), ibid., 4:636. See also “William Penn, No. 2” (1788), in Storing, Complete Anti-Federalist, 3:12; Benjamin Franklin to Richard Price, Oct. 9, 1780, in Kurland and Lerner, Founders’ Constitution, 4:634; “Petition of Philadelphia Synagogue to Council of Censors of Pennsylvania” (Dec. 23, 1783), ibid., 4:635; Bernard Bailyn, ed., The Debate on the Constitution (New York: Library of America, 1993), 2:903. 11. Murrin, “Religion and Politics,” 31; Murrin, “Fundamental Values,” 25–30; Gaustad, Faith of Our Fathers; Paul F. Boller Jr., “George Washington and Religious Liberty,” William and Mary Quarterly, 3rd ser., 17 (1960): 486–506; Norman Cousins, In God We Trust: The Religious Beliefs of the American Founding Fathers (New York: Harper, 1958), 9; Kramnick and Moore, Godless Constitution, 26–45. 12. Madison, Federalist No. 10, in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), 77–84; Wood, Creation of the American Republic, 426–429, 606–607; Marsden, “America’s ‘Christian’ Origins,” 250–252; Noll, One Nation under God? 68–69. 13. Federalist No. 51, in Rossiter, The Federalist Papers, 322. 14. Charles Francis Adams, ed., The Works of John Adams (Boston: Little, Brown, 1851), 4:293. 15. Noll, One Nation under God?, 68–70. 16. Storing, Complete Anti-Federalist, 1:22–23, 4:221, 242; Speech of Henry Abbot (North Carolina), July 30, 1788, in Bailyn, Debate on the Constitution, 2:902. See also Luther Martin’s letter of Jan. 27, 1788, to the Maryland Assembly, where he noted with sarcasm that a few delegates were “so unfashionable as to think that a belief of the existence of a Deity . . . would be some security for the good conduct of our rulers.” Jonathan Elliot, The Debates in the Several States on the Adoption of the Federal Constitution (Philadelphia: J.B. Lippincott, 1863), 1:33–34, 386. 17. Charles Turner, Feb. 5, 1788, in Storing, Complete Anti-Federalist, 4:221; “Essay by Samuel,” Independent Chronicle and Universal Advertiser, Jan. 10, 1788, ibid., 195. 18. American Mercury (Hartford, Conn.), Feb. 11, 1788, in Bailyn, Debate on the Constitution, 2:193–194. 19. Kramnick, “Discourse of Politics,” 174–177. 20. “A Landholder,” Connecticut Courant, Dec. 17, 1787, in Bailyn, Debate on the Constitution, 1:521–525. 21. Aristocrotis, “Government of Nature Delineated; or, An Exact Picture of the New Federal Constitution” (1788), in Storing, Complete Anti-Federalist, 3:206–207. 22. Enos Hitchcock, “Oration in Commemoration of Independence of the United States of America” (1793), in Sandoz, Political Sermons, 1182–1183. See also the Jan. 31,

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1788, statement by the Reverend Daniel Shute in the Massachusetts ratifying convention. Bailyn, Debate on the Constitution, 1:919–920. 23. Kramnick, “Great National Discussion,” 10–14; Federalist Nos. 10, 39, and 51, in Rossiter, Federalist Papers, 77, 84, 240–246, 320–325. 24. Elliot, Debates, 4:196, 200, 198; Bailyn, Debate on the Constitution, 522, 752–753. 25. Elliot, Debates, 2:148–149. 26. Storing, Complete Anti-Federalist, 3:206. 27. Ibid., 3:37. 28. Federalist No. 84. See James Madison, Virginia ratifying convention, June 12, 1788 (expressing doubt that “a bill of rights [provides] security for religion”), in Kurland and Lerner, Founders’ Constitution, 5:88. See Madison to Thomas Jefferson, Oct. 17, 1788: “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect.” The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison, 1776–1826, ed. James Morton Smith (New York: Norton, 1995), 1:564. 29. See “A [Maryland] Farmer, No. 7,” in Storing, Complete Anti-Federalist, 5:105–107: Civil and religious liberty are inseparably interwoven—whilst government is pure and equal—religion will be uncontaminated:—The moment government becomes disordered, bigotry and fanaticism take root and grow—they are soon converted to serve the purpose of usurpation, and finally, religious persecution reciprocally supports and is supported by the tyranny of the temporal powers. Also see “William Penn, No. 2” (1788), ibid., 3:12; and William Lancaster, North Carolina ratifying convention, July 30, 1788, in Elliot, Debates, 4:215: “let us remember that we form a government for millions not yet in existence.” 30. “An Old Whig, No. 5,” in Storing, Complete Anti-Federalist, 3:3.27–29. 31. Reprinted in Leonard W. Levy, Judgments: Essays on American Constitutional History (Chicago: Quadrangle, 1972), 176; “Essay by Deliberator,” Philadelphia Freeman’s Journal, Feb. 20, 1788, in Storing, Complete Anti-Federalist, 3:179. 32. “Letters of Centinel,” Philadelphia Independent Gazetteer, Nov. 7, 1787, in Storing, Complete Anti-Federalist, 2:152. 33. “William Penn, No. 2” (1788), in Storing, Complete Anti-Federalist, 3:12. 34. Statement of Oliver Wolcott, Connecticut ratifying convention, Jan. 9, 1788, in Elliot, Debates, 2:202. 35. See Neil H. Cogan, ed., The Complete Bill of Rights ((New York: Oxford University Press, 1997), 11–13. According to Leonard Levy, the proposal failed, not because the Federalist majority disagreed with its substance, but because they “wished to ratify unconditionally for the purpose of demonstrating confidence in the new system of government.” Establishment Clause, 69. 36. Virginia Proposed Amendment No. 20, in Kurland and Lerner, Founders’ Constitution, 5:89; Cogan, Complete Bill of Rights, 12.

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37. See Levy, Establishment Clause, 70; Donald L. Drakeman, Church-State Constitutional Issues (New York: Greenwood, 1991), 65; Cogan, Complete Bill of Rights, 12. 38. Elliot, Debates, 2:399; Curry, First Freedoms, 193–222; Levy, Establishment Clause, 66–89. 39. Daily Advertiser, June 9, 1789, 2, in Cogan, Complete Bill of Rights, 57. See also Annals of Congress (June 8, 1789), 1:488. 40. Annals, 1:451. 41. Ibid., 1:452. 42. Snee, “Religious Disestablishment,” 371, 379–382, 381. “The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.” Annals, 1:453. 43. Elliot, Debates, 3:330 (June 12, 1788). 44. See Memorial and Remonstrance ¶¶ 1, 8, 15; Isaac Backus, A History of New England (Boston: Edward Draper, 1796), 65. 45. Annals, 1:757–759 (Aug. 15, 1789); ibid., 796 (Aug. 20, 1789). 46. Senate Journal, (Sept. 3, 1789), 1:70. Other substantive proposals that would have limited the breadth of the House version included: Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society. (Ibid.) Congress shall make no law establishing any particular denomination of religion in preference to another. (Ibid.) These were rejected. See Cogan, Complete Bill of Rights, 5–6. 47. House Journal, 146, in Cogan, Complete Bill of Rights, 5; Senate Journal, 142, ibid., 7–8. 48. House Journal, 152; Senate Journal, 145, both ibid., 8–9. 49. Daniel O. Conkle, “Toward a General Theory of the Establishment Clause,” Northwestern University Law Review 82 (1988): 1113, 1133–1134; Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), 30; Elk Grove School Dist. v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring). 50. See Steven K. Green, “Federalism and the Establishment Clause,” Creighton Law Review 38 (2005): 761; Green, “‘Bad History’: The Lure of History in Establishment Clause Adjudication,” Notre Dame Law Review 81 (2006): 101; Elk Grove, 2331 (Thomas, J., concurring) (“incorporation . . . would prohibit precisely what the Establishment Clause was intended to protect—state establishments of religion”). 51. Bradley, Church-State Relationships, 89–90; Conkle, “Toward a General Theory,” 1133–1134. See Green, “Federalism,” 774–780. 52. Levy, Establishment Clause, 46–51; Curry, First Freedoms, 162–192; McLoughlin, New England Dissent, 2:610–611; Douglas Laycock, “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William and Mary Law Review 27 (1986): 857, 906. 53. Cogan, Complete Bill of Rights, 12; Annals, 1:758–759. 54. Snee, “Religious Disestablishment,” 385.

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55. Annals, 1:757. 56. Annals, 1:796; Senate Journal (Sept. 3, 1789), 1:70. “If ‘respecting an’ imputes anything new, it is, as some commentators have argued, a return to the Livermore formula by preventing Congress from interfering with existing state establishments. The amalgam perhaps intended was that the national government may neither effect an establishment nor interfere with states that do.” Bradley, Church-State Relationships, 95. 57. Huntington’s statement indicates, however, that he (like his fellow members of the Massachusetts Standing Order) did not view the financial support of ministers or “places of worship” as constituting a religious establishment. Annals, 1:758–759. 58. Ibid., 757. 59. Ibid., 758–759. 60. Ibid., 758. See Laycock, “Nonpreferential Aid,” 890 (stating that there is no evidence that a majority of the members supported Huntington’s proposal). 61. Annals, 1:759. 62. “He observed that tho’ the sense of both provisions was the same, yet the former might seem to wear an ill face and was subject to misconstruction.” Daily Advertiser, Aug. 17, 1789, 2; New-York Daily Gazette, Aug. 18, 1789, 798, in Cogan, Complete Bill of Rights, 61. 63. Cogan, Complete Bill of Rights, 12–13. Massachusetts and Connecticut ratified the Constitution without making any calls for an amendment to protect their establishments. Elhanan Winchester, “A Century Sermon,” in Sandoz, Political Sermons, 991; Levy, Establishment Clause, 70; Drakeman, Church-State, 65. 64. John R. Howe, ed., The Changing Political Thought of John Adams (Princeton, NJ: Princeton University Press, 1966), 185; Cord, Separation of Church and State, 49–82. 65. Wood, Creation of the American Republic; Gordon S. Wood, “Rhetoric and Reality in the American Revolution,” William and Mary Quarterly, 3rd ser., 23 (1966): 3–32. 66. Worthington Chauncey Ford, ed., The Writings of George Washington (New York: Putnam’s, 1891), 11:384. 67. Dorothy Twohig, ed., Papers of George Washington, Presidential Series (Charlottesville: University Press of Virginia, 1987), 77–79; Boller, “George Washington and Religious Liberty,” 501–502. 68. Letter to the Hebrew Congregation of Newport, Rhode Island, Aug. 17, 1790; Letter to United Baptist Churches in Virginia, May 1789, both in William Addison Blakely, American State Papers Bearing on Sunday Legislation, rev. ed. (Washington, DC: Religious Liberty Association, 1911), 170–172. 69. Morison, Sources and Documents, 204–206, 226, 231; Ronald A. Smith, “Freedom of Religion and the Land Ordinance of 1785,” Journal of Church and State 24 (1982): 589–602; Gaustad, Faith of Our Fathers, 151–156; Davis, Religion and the Continental Congress, 168–172. 70. Madison to Monroe, May 29, 1785, in The Writings of James Madison, ed. Gaillard Hunt (New York: Putnam’s, 1900–1910), 2:145; Smith, “Freedom of Religion,” 591–597, 599; Davis, Religion and the Continental Congress, 168–172.

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71. Enos Hitchcock, “An Oration” (July 4, 1793), in Sandoz, Political Sermons, 1176–1177; Samuel Langdon, “The Republic of the Israelites: An Example to the American States,” ibid., 957–958; Speeches of the Reverend Daniel Shute and the Reverend Isaac Backus (Massachusetts), Jan. 31, 1788, and Feb. 4, 1788, in Bailyn, Debate on the Constitution, 1:919–920, 931. 72. Langdon, “Republic of the Israelites,” 957–958. 73. Winchester, “Century Sermon,” 997. 74. Ibid., 99, 98; Samuel Miller, “A Sermon Preached in New York, July 4th, 1793, Being the Anniversary of the Independence of America,” ibid., 1165–1166; Harry S. Stout, “Rhetoric and Reality in the Early Republic: The Case of the Federalist Clergy,” in Noll, Religion and American Politics, 62–69. 75. William Linn, The Blessings of America: A Sermon Preached in the Middle Dutch Church on the Fourth of July, 1791, in New York City (New York: Thomas Greenleaf, 1791), 8–9, 16, 18–19, 24. See also Hitchcock, “An Oration,” in Sandoz, Political Sermons, 1173–1183; John Thayer, “A Discourse Delivered at the Roman Catholic Church in Boston” (May 9, 1798), ibid., 1343–1361. 76. Jeremiah Atwater, “A Sermon” (1801), in Hyneman and Lutz, American Political Writing, 1171–1177; Timothy Stone, “Election Sermon” (1792), ibid., 841–843, 848; Samuel Kendal, “Religion the Only Sure Basis of Free Government” (1804), ibid., 1243, 1250, 1260; see also Zephaniah Swift Moore, “An Oration on the Anniversary of the Independence of the United States of America” (1802), ibid., 1214. 77. Adams, Works of John Adams, 4:293; 9:375. 78. Winchester, “Century Sermon,” 991.

CHAPTER

3

1. Franklin to Richard Price, Oct. 9, 1780, in Kurland and Lerner, Founders’ Constitution, 4:634; Rush to Richard Price, Apr. 22, 1786, ibid., 4:636; Frost, Perfect Freedom, 74–77; Thorpe, Federal and State Constitutions, 5:3085, 3100. 2. Webster, “On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office” (Mar. 1787), in Kurland and Lerner, Founders’ Constitution, 4:636. 3. See Frost, Perfect Freedom, 75, 77. 4. Timothy Stone, “An Election Sermon” (1792), in Hyneman and Lutz, American Political Writing, 843, 847; Samuel Miller, “A Sermon Preached on the Anniversary of the Independence of America” (1793), in Sandoz, Political Sermons, 1165–1166; Enos Hitchcock, “An Oration,” ibid., 1176; Nathanael Emmons, “A Discourse Delivered on the National Fast” (1799), in Hyneman and Lutz, American Political Writing, 1024. 5. Timothy Dwight, “The Duty of Americans, at the Present Crisis” (July 4, 1798), in Sandoz, Political Sermons, 1374, 1380; Bloch, Visionary Republic, 95–105, 150–186, 202–231; Butler, Awash in a Sea of Faith, 218–220; Wood, Creation of the American Republic. 6. Handy, A Christian America, 24–56. 7. Bloch, Visionary Republic, 95–105, 150–186, 202–231; Butler, Awash in a Sea of Faith, 216–220. 8. Linn, Blessings of America, 34; David Tappan, “Election Sermon” (May 30, 1792), in Sandoz, Political Sermons, 1125; Samuel Wales, “The Dangers of Our National

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Prosperity; and the Way to Avoid Them” (1785), ibid., 840; Wood, Creation of the American Republic, 606; Bloch, Visionary Republic, 107–109. 9. John M. Mason, “Divine Judgments” (Sept. 20, 1793), in Mason, Complete Works, 3:43, 45, 51, 53, 60–62. 10. Jedidiah Morse, “The Present Situation of Other Nations of the World, Contrasted with Our Own” (Boson: Samuel Hall, Feb. 19, 1795), 11; Hitchcock, “An Oration” (1793), in Sandoz, Political Sermons, 1180. 11. Gary B. Nash, “The American Clergy and the French Revolution,” William and Mary Quarterly, 3rd ser., 22 (1965): 397; Morse, “The Present Situation of Other Nations of the World,” 14. 12. Noah Webster, “The Revolution in France” (1794), in Sandoz, Political Sermons, 1239, 1253. 13. Nash, “American Clergy and the French Revolution,” 397–399; Robert Wuthnow, The Restructuring of American Religion (Princeton, NJ: Princeton University Press, 1988), 164–165; Susan Jacoby, Freethinkers: A History of American Secularism (New York: Owl, 2004), 13–34; G. Adolf Koch, Religion of the American Enlightenment (New York: Crowell, 1968), 3–27; see, generally, Edwin S. Gaustad, Faith of the Founders: Religion and the New Nation 1776–1826, 2nd ed. (Waco, TX: Baylor University Press, 2004); Alf J. Mapp Jr., The Faiths of Our Fathers: What America’s Founders Really Believed (New York: Barnes & Noble, 2006). 14. Mason, “Divine Judgments,” 60–62. 15. David Osgood, “The Wonderful Works of God Are to Be Remembered,” in Sandoz, Political Sermons, 1221–1234; Jedidiah Morse, A Sermon Preached at Charlestown, November 29, 1798 (Boston: Samuel Hall, Printer, 1798), 30–31, 13; Nash, “American Clergy and the French Revolution,” 397–399. 16. Koch, Religion of the American Enlightenment, 51–129; Nash, “American Clergy and the French Revolution,” 400–405; Jacoby, Freethinkers, 55; Albert Post, Popular Free-Thought in America, 1825–1850 (New York: Octagon, 1974), 16–27; Charles Beecher, ed., Autobiography of Lyman Beecher (New York, Harper, 1864), 1:43. 17. Dwight, “The Duty of Americans,” 1374–1375, 1380; Bloch, Visionary Republic, 202–216. 18. Mason, “The Voice of Warning,” in Mason, Complete Works, 4:552–553, 537. 19. Linn, Serious Considerations, 14–16, 23; Noll, One Nation under God? 75–82; Butler, Awash in a Sea of Faith, 219–220. 20. Mason, “Voice of Warning,” 4:561, 570–571; Samuel Brown Wylie, The Two Sons of Oil (Breensburg, PA: Snowden & McCorkle, 1803), 39, 47–48; Stout, “Rhetoric and Reality,” 62. 21. Samuel Austin, A Sermon Preached at Worcester, on the Annual Fast, April 11, 1811 (Worcester, MA: Isaac Sturtevant, 1811), 23. 22. Harold C. Syrett, ed., The Papers of Alexander Hamilton (New York: Columbia University Press, 1977), 25:606–607; Arthur M. Schlesinger Jr., The Age of Jackson (1945; reprint, New York: Little, Brown, 1971), 350. 23. Timothy Dwight, A Discourse in Two Parts (Boston: Cummings & Hilliard, 1813), 24; Stout, “Rhetoric and Reality,” 62–63.

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24. Chauncey Lee, The Government of God the True Source and Standard of Human Government (Hartford, CT: Hudson and Goodwin, 1813), 43, quoted in Stout, “Rhetoric and Reality,” 74. 25. Wylie, Two Sons of Oil, 9. 26. Linn, Serious Considerations, 23; James Blythe, “Our Sins Acknowledged,” in Liberal Kentucky 1780–1828, ed. Niels Henry Sonne (New York: Columbia University Press, 1939), 119–124. 27. Samuel Kendal, “Religion the Only Sure Basis of Free Government,” in Hyneman and Lutz, American Political Writing, 1243, 1250; Mark A. Noll, “The Image of the United States as a Biblical Nation, 1776–1865,” in The Bible in America, ed. Nathan O. Hatch and Mark A. Noll (New York: Oxford University Press, 1982), 44; Stout, “Rhetoric and Reality,” 65–66; Bloch, “Religion and Ideological Change,” 55–56. 28. Butler, Awash in a Sea of Faith, 268–288. 29. Sweet, Revivalism in America; William G. McLoughlin, Revivals, Awakenings, and Reform (Chicago: University of Chicago Press, 1978), 98–140; McLoughlin, ed., The American Evangelicals, 1800–1900 (Gloucester, MA: Peter Smith, 1976), 1–27; Paul E. Johnson, A Shopkeeper’s Millennium (New York: Hill & Wang, 1978); Donald G. Mathews, Religion in the Old South (Chicago: University of Chicago Press, 1976). 30. Robert Baird, Religion in the United States of America (Glasgow: Blackie, 1844), 602–603, 606. 31. Edwin Scott Gaustad, Historical Atlas of American Religion, rev. ed. (New York: Harper & Row, 1976), 37–57; Butler, Awash in a Sea of Faith, 283; Roger Finke and Rodney Stark, The Churching of America 1776–1990 (New Brunswick, NJ: Rutgers University Press, 1992), 15–16; Robert T. Handy, “The Protestant Quest for a Christian America, 1830–1930,” Church History 22 (1953): 8–20, 12. 32. Morse, Sermon Preached at Charlestown, 19. 33. James A. Lyon, D.D., A Lecture on Christianity and the Civil Laws (Columbus, MS: Mississippi Democrat, 1859), 22; Noll, “Image of the United States,” 44. “[T]he inherited Puritan rhetorical world was incapable of seeing the constitutional realities of the First Amendment as ‘really real.’ Lying behind that Constitution, was another, more important reality of America as a Christian nation.” Stout, “Rhetoric and Reality,” 65–66. 34. Lyon, Lecture, 22; Tuveson, Redeemer Nation, 64. 35. Alice Felt Tyler, Freedom’s Ferment: Phases of American Social History to 1860 (Minneapolis: University of Minnesota Press, 1944), 47–224. 36. See, generally, Edwin S. Gaustad, Dissent in American Religion (Chicago: University of Chicago Press, 1973); R. Laurence Moore, Religious Outsiders and the Making of Americans (New York: Oxford University Press, 1986); Butler, Awash in a Sea of Faith, 225–256, 282–283; Robert H. Abzug, Cosmos Crumbling: American Reform and the Religious Imagination (New York: Oxford University Press, 1994), 30–32, 57–75. 37. Handy, A Christian America, 27. 38. Lyman Beecher, “The Practicability of Suppressing Vice, by Means of Societies Instituted for That Purpose” (1803), in Lyman Beecher and the Reform of

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Society, ed., Edwin S. Gaustad (New York: Arno, 1972), 19–20; Beecher, “The Remedy for Duelling” (1806), ibid., 7. 39. Beecher, “A Reformation of Morals Practicable and Indispensable” (1812), ibid., 17; Beecher, “The Practicability of Suppressing Vice,” ibid., 16–17. 40. Beecher, “A Reformation of Morals Practicable and Indispensable,” ibid., 18. 41. Ibid., 17–19; Abzug, Cosmos Crumbling, 30–56; Handy, A Christian America, 37–47; Butler, Awash in a Sea of Faith, 284–287. 42. James Fulton Maclear, “‘The True American Union’ of Church and State: The Reconstruction of the Theocratic Tradition,” Church History 28 (1959): 41–62. 43. Quoted in ibid., 51. 44. “The Design, Rights and Duties, of Local Churches” (July 21, 1819), in Lyman Beecher, Sermons Delivered on Various Occasions (Boston: John P. Jewett, 1852), 2:218–219. 45. Ibid. 46. Beecher, “The Remedy for Duelling,” 7; Butler, Awash in a Sea of Faith, 212; Stout, “Rhetoric and Reality,” 69. 47. Lyman Beecher, Beecher’s Works (Boston: John P. Jewett, 1852), 1:189; T. V. Moore, D.D., The Christian Lawyer; or, The Claims of Christianity on the Legal Profession (Richmond, VA: MacFarlane & Fergusson, 1858), 13. 48. Reprinted in Farrand, Records, 3:467–473. 49. James Madison to Jared Sparks, Apr. 8, 1831; Madison to Thomas S. Grimke, Jan. 6, 1834, both in Farrand, Records, 3:498–500, 531–532, 467; Murrin, “Fundamental Values,” 33–34. 50. Jasper Adams, The Relation of Christianity to Civil Government in the United States (Charleston, SC: A. E. Miller, 1833), 6–7. 51. Ibid., 9, 11, 7, 13. 52. Ibid., 12–13, 15–16. 53. Ibid., 16. 54. James McClellan, Joseph Story and the American Constitution (Norman: University of Oklahoma Press, 1971), 136–142; Daniel L. Dreisbach, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate (Lexington: University Press of Kentucky, 1996), 113–114. 55. Reprinted in Dreisbach, Religion and Politics, 115–117. 56. Story, Commentaries, §§ 988–991; Story, “Christianity a Part of the Common Law,” American Jurist and Law Magazine 9 (1833): 346–348; Journal of Debates and Proceedings in the Convention of Delegates, Chosen to Revise the Constitution of Massachusetts (1820–1821) (Boston: Daily Advertiser, 1853), 561–563; Meyer, Church and State in Massachusetts, 185–196. 57. Dreisbach, Religion and Politics, 117–121; Madison to Adams, in Wilson and Drakeman, Church and State in American History, 80–82. 58. Wilson and Drakeman, Church and State in American History, 81. 59. Madison, Notes, viii–ix; Memorial and Remonstrance, in Wilson and Drakeman, Church and State in American History, 70; see Federalist Nos. 10 and 14, in Rossiter, Federalist Papers, 77–84, 99–105; Alley, James Madison on Religious Liberty, 89–94.

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60. “Looking, then, to these facts, is it unreasonable for us to believe that Providence guided our fathers in the formation of the American Government?” Harper’s New Monthly Magazine, 17 (1858): 699. 61. “Immunity of Religion,” American Quarterly Review 17 (1835): 319–340, quoted in Dreisbach, Religion and Politics, 127–150. 62. Ibid., 140, 133, 130. 63. Dreisbach, Religion and Politics, 124. 64. Butler, Awash in a Sea of Faith, 286. 65. Theodore Frelinghuysen, An Inquiry into the Moral and Religious Character of the American Government (New York: Wiley and Putnam, 1838), 10–13, 187, 68. 66. Baird, Religion in the United States of America, 259, 260–267. 67. Stephen Colwell, The Position of Christianity in the United States (Philadelphia: Lippincott, Grambo, 1854), 11. 68. B. F. Morris, The Christian Life and Character of the Civil Institutions of the United States (Philadelphia: George W. Childs, 1864), 248–249; Baird, Religion in the United States of America, 258; Colwell, The Position of Christianity, 23–24. 69. Colwell, The Position of Christianity, 23. 70. Morris, Christian Life and Character, 249–255, 248; Mason Locke Weems, The Life of George Washington (1806; reprint, Frankfort, PA: J. Allen, 1826); Edward C. McGuire, The Religious Opinions and Character of Washington (New York: Harper, 1836); Philip Schaff, Church and State in the United States (New York: Putnam’s, 1888), 38; George Bancroft, History of the United States of America (New York: Appleton, 1882), 6:181. See Paul F. Boller Jr., George Washington and Religion (Dallas, TX: Southern Methodist University Press, 1963), 3–23; Murrin, “Religion and Politics,” 34–35. 71. Tyler, Freedom’s Ferment, 47–224; Moore, Religious Outsiders, 3–47; Butler, Awash in a Sea of Faith, 225–247. 72. Tunis Wortman, “A Solemn Address,” 1488–1490. See also “Grotius” (DeWitt Clinton), A Vindication of Thomas Jefferson (New York: David Denniston, Printer, 1800). 73. Wortman, “A Solemn Address,” 1486. 74. “Grotius” (Clinton), Vindication of Thomas Jefferson, 17–18, 37–38; McLoughlin, New England Dissent, 1004, 1006, 1022. 75. Hamburger, Separation of Church and State, 117, 120, 111–112. 76. Meyer, Church and State in Massachusetts, 140–142; Dwight, “The Duty of Americans,” 1382–1383. 77. Fred C. Luebeke, “The Origins of Thomas Jefferson’s Anti-Clericalism,” Church History 32 (Sept. 1963): 344–356; Charles O. Lerche Jr., “Jefferson and the Election of 1800: A Case Study in the Political Smear,” William and Mary Quarterly, 3rd ser., 5 (Oct. 1948): 467–491. 78. Post, Popular Free-Thought, 28. 79. Frelinghuysen, Inquiry, 10–11; Schlesinger, Age of Jackson, 16–17, 350–360; Clement Eaton, ed., The Leaven of Democracy (New York: Braziller, 1963), 39.

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107–113

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80. Schlesinger, Age of Jackson, 16–17, 350–352; Post, Popular Free-Thought, 75–120; Tyler, Freedom’s Ferment, 196–227; Bertram Wyatt-Brown, “Prelude to Abolitionism: Sabbatarian Politics and the Rise of the Second Party System,” Journal of American History 58 (Sept. 1971): 316, 334. 81. Quoted in Schlesinger, Age of Jackson, 351; Post, Popular Free-Thought, 75–120. 82. Frelinghuysen, Inquiry, 10, 18, 150–151. 83. Lyman Beecher, Lectures on Scepticism (Cincinnati, OH: Corey and Fairbank, 1835), 60–61, 75, 77–78. 84. Ezra Stiles Ely, The Duty of Christian Freemen to Elect Christian Rulers (Philadelphia, 1828), in Wilson and Drakeman, Church and State in American History, 96–100; Schlesinger, Age of Jackson, 137. 85. Ely, Duty of Christian Freemen, 98–99. 86. Ibid., 96–97; Wyatt-Brown, “Prelude to Abolitionism,” 325–326. 87. Schlesinger, Age of Jackson, 138. 88. The Works of William E. Channing, D.D. (Boston, 1878), 138–149, reprinted in Wilson and Drakeman, Church and State in American History, 105–109. 89. Post, Popular Free-Thought, 89–121. 90. “The Trial of Abner Kneeland for Blasphemy,” in American State Trials, ed. John D. Lawson (St. Louis, MO: Thomas Law Book, 1921), 13:450–575; Commonwealth v. Kneeland, 20 Pick. (37 Mass.) 206 (Mass. 1838); Leonard Levy, Blasphemy (New York: Knopf, 1993), 413–423. 91. Meyer, Church and State in Massachusetts, 138–139; Beecher, “The Practicability of Suppressing Vice,” 15; Beecher, “The Design, Rights and Duties, of Local Churches,” 207–208. 92. Richard R. John, “Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture,” Journal of the Early Republic 10 (Winter 1990): 517, 520–523; Kramnick and Moore, Godless Constitution, 132–133; Wyatt-Brown, “Prelude to Abolitionism,” 328–329. 93. See Petition of James P. Wilson et al. (Jan. 30, 1811), in Blakely, American State Papers, No. 26, 11th Cong., 3rd sess. (1811); Blakely, American State Papers, No. 27, Post Office No. 30, 13th Cong., 3rd sess. (1815); John, “Taking Sabbatarianism Seriously,” 525–535; Kramnick and Moore, Godless Constitution, 133–134. 94. Beecher, Lectures on Scepticism, 113–114. 95. John, “Taking Sabbatarianism Seriously,” 535–540; Kramnick and Moore, Godless Constitution, 134–135. 96. Blakely, American State Papers, No. 27, 232–233. 97. John, “Taking Sabbatarianism Seriously,” 541–542. 98. Blakely, American State Papers, 232–233. 99. A sampling of petitions is contained in Blakely, American State Papers, 277–300. Also see John, “Taking Sabbatarianism Seriously,” 548–556; Kramnick and Moore, Godless Constitution, 137–138. 100. Preserved Fish, “Preamble and Resolutions, Adopted at a Meeting of the Citizens of New York, against the Passage of Any Law Prohibiting the Transportation

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and Opening of the Mail on the Sabbath,” Feb. 9, 1829, 20th Cong., 2nd sess., Senate doc. No. 64. 101. Petition from Windham County, Vermont, Feb. 24, 1831, 21st Cong., 2nd sess., House doc. No. 104; Essex County, New Jersey, Petition, Jan. 8, 1830, in Blakely, American State Papers, 278. 102. Blakely, American State Papers, 285, 288. 103. Windham County, Vermont, Petition, House doc. No. 104. 104. Ibid. 105. Blakely, American State Papers, 271–276; John, “Taking Sabbatarianism Seriously,” 555–556; Schlesinger, Age of Jackson, 138–139. 106. See Senate Report on Sunday Mails, Committee on the Post Office and Post Roads, Jan. 19, 1829, 20th Cong., 2nd sess., and House Report on Sunday Mails, Committee on the Post Office and Post Roads, Mar. 4 and 5, 1830, 21st Cong., 1st sess., both in Blakely, American State Papers, 233–270. 107. Senate Report, 234–235. 108. Senate Report, 237; House Report, 257. 109. House Report, 255. 110. Senate Report, 239. 111. Sunday Mail No. 87, Mar. 5, 1830, House of Representatives, 21st Cong., 1st sess., 231. 112. Sunday Mail No. 65, Feb. 3, 1829, House of Representatives, 20th Cong., 2nd sess., 1–2. 113. Frelinghuysen, Inquiry, 11–12, 14. 114. See Abzug, Cosmos Crumbling, 30–56, 81–124; Timothy L. Smith, Revivalism & Social Reform (Baltimore, MD: Johns Hopkins University Press, 1980), 4–62; Ronald G. Walters, American Reformers, 1815–1869 (New York: Hill & Wang, 1978).

CHAPTER

4

1. See, generally, McLoughlin, New England Dissent, vol. 2; McLoughlin, Soul Liberty: The Baptists’ Struggle in New England (Hanover, NH: University Press of New England, 1991); Cushing, “Notes on Disestablishment in Massachusetts,” 169–190; Meyer, Church and State in Massachusetts, 133–233. 2. See Muzzy v. Wilkins, 1 Smith’s 1 (N.H. 1803); Barnes v. the Inhabitants of Falmouth, 6 Mass. 401 (1810); Adams v. Howe, 14 Mass. 340 (1817); Baker v. Fales, 16 Mass. 488 (1820). 3. See Barnes v. the Inhabitants of Falmouth, 6 Mass. 401 (1810); Kendall v. Inhabitants of Kingston, 5 Mass. 524 (1809). 4. See McLoughlin, New England Dissent, 2:789–1106; Cushing, “Notes on Disestablishment in Massachusetts,” 181–190; Meyer, Church and State in Massachusetts, 133–233. 5. Thorpe, Federal and State Constitutions, 6:3752; McLoughlin, New England Dissent, 2:795–812; Curry, First Freedoms, 188–189. 6. McLoughlin, New England Dissent, 2:877–879.

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7. Muzzy v. Wilkins, 1 Smith’s 1, 10–11 (N.H. 1803). 8. Ibid., 12–13. 9. Ibid., 13–14. 10. McLoughlin, New England Dissent, 2:880–911. 11. Quote about Yale attributed to Abraham Bishop, reprinted in Richard J. Purcell, Connecticut in Transition 1775–1818 (Middletown, CT: Wesleyan University Press, 1963), 191, 202. 12. McLoughlin, New England Dissent, 2:915–918; McLoughlin, Soul Liberty, 290; Bruce Kuklick, Churchmen and Philosophers (New Haven, CT: Yale University Press, 1985), 43–65, 94–111. 13. McLoughlin, New England Dissent, 2:919; Purcell, Connecticut in Transition, 33–61. 14. McLoughlin, New England Dissent, 2:922–938; John Leland, The Rights of Conscience Inalienable, and Therefore Religious Opinions Not Cognizable by Law or, the High-Flying Churchman Stripped of His Legal Robes Appears a Yahoo (New London: F. Green & Son, 1791). 15. Ibid., 20, 13. 16. Purcell, Connecticut in Transition, 195–197; McLoughlin, New England Dissent, 2:946. 17. Purcell, Connecticut in Transition, 191–195. 18. James R. Beasley, “Emerging Republicanism and the Standing Order: The Appropriation Act Controversy in Connecticut, 1793 to 1795,” William and Mary Quarterly, 3rd ser., 29 (1972): 587–610. 19. Purcell, Connecticut in Transition, 195–197. 20. Beecher, Autobiography, 1:261. 21. Beasley, “Emerging Republicanism and the Standing Order,” 604–605. 22. Zephaniah Swift, A System of the Laws of the State of Connecticut (1795; reprint, New York: Arno, 1972), 1:136, 141. 23. Ibid., 144. 24. Ibid., 145. 25. Ibid., 141. 26. Ibid., 146. 27. Ibid., 141; McGarvie, One Nation under Law, 152–189. 28. Purcell, Connecticut in Transition, 61–64. 29. McLoughlin, New England Dissent, 2:985–1005; Daniel L. Dreisbach, “‘Sowing Useful Truths and Principles’: The Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation,’” Journal of Church and State 39 (1997): 455, 460. 30. Dreisbach, “Sowing Useful Truths and Principles,” 467–468. 31. McLoughlin, New England Dissent, 2:985–1005, 1010–1015; Hamburger, Separation of Church and State, 145–180. 32. McLoughlin, New England Dissent, 2:1006–1042. 33. Beecher, “The Building of Waste Places,” in Beecher’s Works, 2:124–126. 34. Ibid., 126; “An Address to the Charitable Society” (1814), quoted in McLoughlin, New England Dissent, 2:1029–1033; Sidney E. Mead, “Lyman Beecher and Connecticut

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Orthodoxy’s Campaign Against the Unitarians, 1819–1826,” 9 Church History (1940): 218–234. 35. American Mercury, Mar. 19, 1816, 2; Sept. 10, 1816, both reprinted in Purcell, Connecticut in Transition, 217; McLoughlin, New England Dissent, 2:1032. 36. McLoughlin, New England Dissent, 2:1025–1062. 37. Ibid., 1043–1062; Purcell, Connecticut in Transition, 262–263. 38. Beecher, Autobiography, reprinted in Wilson and Drakeman, Church and State, 94–95. 39. Ibid. 40. Taylor, Massachusetts: Colony to Commonwealth, 128; Cushing, “Notes on Disestablishment in Massachusetts,” 169–173; Meyer, Church and State in Massachusetts, 107–108. 41. McLoughlin, New England Dissent, 2:1067. 42. Meyer, Church and State in Massachusetts, 138–143; McLoughlin, Soul Liberty, 293–303. 43. Meyer, Church and State in Massachusetts, 139–143; Cushing, “Notes on Disestablishment in Massachusetts,” 173–181; Adams, Works of John Adams, 2:399. 44. McLoughlin, New England Dissent, 1:653–654; Cushing, “Notes on Disestablishment in Massachusetts,” 173–181; Ernest Cassara, ed., Universalism in America: A Documentary History (Boston: Beacon, 1971), 1–3, 10–14. 45. McLoughlin, New England Dissent, 1:653–658; Cushing, “Notes on Disestablishment in Massachusetts,” 173–181. 46. Meyer, Church and State in Massachusetts, 143–144; Cushing, “Notes on Disestablishment in Massachusetts,” 181–182. 47. Avery v. Inhabitants of Tyringham, 3 Mass. 160, 179–180 (1807). 48. Ibid., 174. 49. McLoughlin, New England Dissent, 2:1065–1074; Meyer, Church and State in Massachusetts, 149–152. 50. Quoted in McLoughlin, New England Dissent, 2:1068–1074; Meyer, Church and State in Massachusetts, 149–152. 51. Thaxter v. Jones, 4 Mass. 570, 573 (1808); Montague v. Dedham, 4 Mass. 269 (1808). 52. Kendall v. Inhabitants of Kingston, 5 Mass. 524, 532 (1809). 53. Barnes v. First Parish in Falmouth, 6 Mass. 401 (1810); McLoughlin, New England Dissent, 2:1084–1097. 54. Barnes, 404–406. 55. Ibid., 406–407, 413. 56. Ibid., 409–410. 57. Ibid., 409, 413, 416; Taylor, Massachusetts: Colony to Commonwealth, 129. 58. Barnes, 410–411. 59. McLoughlin, New England Dissent, 2:1091–1105; Cushing, “Notes on Disestablishment in Massachusetts,” 185–186. 60. Adams v. Howe, 14 Mass. 340, 341–342 (1817). 61. Ibid., 344.

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62. Ibid., 348, 345. 63. Meyer, Church and State in Massachusetts, 160–183. 64. 9 Mass. 277, 297 (1812). 65. 16 Mass. 488, 502 (1820). See also Meyer, Church and State in Massachusetts, 174–176; McLoughlin, New England Dissent, 2:1189–1197. 66. See Meyer, Church and State in Massachusetts, 184–200; McLoughlin, New England Dissent, 2:1160–1185. 67. See Journal of Debates, 561. 68. Meyer, Church and State in Massachusetts, 197–200; McLoughlin, New England Dissent, 2:1183–1185. 69. Meyer, Church and State in Massachusetts, 177; McLoughlin, New England Dissent, 2:1196. 70. Meyer, Church and State in Massachusetts, 201–202; McLoughlin, New England Dissent, 2:1207–1262. 71. Harper’s New Monthly Magazine, 17 (1858): 698–699. 72. Ibid., 695.

CHAPTER

5

1. For a different view of the impact of the Christian-nation maxim, see Stuart Banner, “When Christianity Was Part of the Common Law,” Law and History Review 16 (1998): 27. 2. Morton J. Horwitz, The Transformation of American Law 1780–1860 (Cambridge, MA: Harvard University Press, 1977), 1–30. 3. Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955), 9–18; Wright, American Interpretations, 3–6; Marcus Tullius Cicero, De Legibus, reprinted in Le Boutillier, American Democracy and Natural Law, 59–60. 4. Corwin, “Higher Law” Background, 16–23; Le Boutillier, American Democracy and Natural Law, 68. 5. Henry de Bracton, On the Laws and Customs of England, ed. Samuel E. Thorne (Cambridge: Belknap, 1968), 5; John Fortescue, Praises of the Laws of England (De Laudibus) (Cambridge: Cambridge University Press, 1949), 157; Corwin, “Higher Law” Background, 27–38. 6. Christopher St. Germain, The Doctor and Student; or, Dialogues between a Doctor of Divinity and a Student in the Laws of England (Cincinnati, OH: R. Clarke, 1874), 3, 10; William Searle Holdsworth, History of English Law (London: Methuen, 1909), 4:266–269. 7. Calvin’s Case, 7 Co. 4b, 12a–12b (1610); Roscoe Pound, The Formative Era of American Law (Gloucester, MA: Peter Smith, 1960), 9, 13; McClellan, Joseph Story, 64–65. 8. Humphrey Bohun v. John Broughton, Bishop of London, Y.B. 34 Hen. VI Pasch. (1458); Bradley S. Chilton, “Cliobernetics, Christianity and the Common Law,” Law Library Journal 83 (1991): 355, 358–361.

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9. 1 Ventr. 293; 3 Keble 607, 621. Taylor reputedly declared Christ to be a “whore-master” and a “bastard” while religion was a “cheat.” Ibid. Taylor also claimed to be the younger brother of Jesus. Taylor’s indictment is reprinted in Leonard W. Levy, Treason against God: A History of the Offense of Blasphemy (New York: Schocken, 1981), 313–314; Courtney Kenny, “The Evolution of the Law of Blasphemy,” Cambridge Law Journal 1 (1922): 127, 129–130. 10. Woolston’s Case, 2 Strange’s Rep. 832, 834; 1 Barn. 162 (K.B. 1729); 94 Eng. Rep. 655–656; Kenny, “Evolution of the Law of Blasphemy,” 133–134. 11. Kenny, “Evolution of the Law of Blasphemy,” 130; The King and Curl, 1 Barn. 29 (K.B. 1727), 94 Eng. Rep. 20; De Costa v. De Paz, 2 Swans. 532 (Ch. 1754), 36 Eng. Rep. 715. 12. William Blackstone, Commentaries on the Laws of England: Book the Fourth: Of Public Wrongs, ed. Charles M. Haar (1765–1769; reprint, Boston: Beacon, 1962), 55; Smith v. Sparrow, 4 Bing 84, 13 CLR 411 (1827). Also see In re Bedford Charity, 36 Eng. Rep. 696 (1819); Shore v. Wilson, 8 Eng. Rep. 450 (H.L. 1842). 13. Blackstone, Commentaries on the Laws of England: Book the First: Of the Rights of Persons, ed. Stanley N. Katz (1765; reprint, Chicago: University of Chicago Press, 1979), 40–42; Paul Lucas, “Ex Parte Sir William Blackstone, ‘Plagiarist’: A Note on Blackstone and the Natural Law,” American Journal of Legal History 7 (1963): 142–158; Lawrence M. Friedman, A History of American Law (New York: Touchstone, 1973), 88–89. 14. Wright, American Interpretations, 15–18; Richard B. Morris, Studies in the History of American Law, 2nd ed. (New York: Octagon, 1974), 27–29; George Lee Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), 123–127; John Cotton, “A Discourse about Civil Government,” in Wilson and Drakeman, Church and State, 7. 15. The Colonial Laws of Massachusetts: Reprinted from the Edition of 1660 . . . Containing Also the Body of Liberties of 1641 (Boston, 1889; reprint, Littleton, CO: Rothman, 1995), 29, 55; Thomas G. Barnes, ed., The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusetts (1648; reprint, San Marino, CA: Huntington Library, 1975), 8; Haskins, Law and Authority, 2, 123–127, 137, 142–143; Rosezella Canty-Letsome, “John Winthrop’s Concept of Law in 17th Century New England: One Notion of Puritan Thinking,” Duquesne Law Review 16 (1977–1978): 331, 343, 350; Wright, American Interpretations, 15–18; Morris, Studies in the History of American Law, 27–29. 16. Haskins, Law and Authority, 158–162; George L. Haskins and Samuel E. Ewing III, “The Spread of Massachusetts Law in the Seventeenth Century,” University of Pennsylvania Law Review 106 (1958): 413; Russell K. Osgood, The History of the Law in Massachusetts (Boston: Supreme Judicial Court Historical Society, 1992), 10–13; Morris, Studies in the History of American Law, 62–64; David Thomas Konig, Law and Society in Puritan Massachusetts, (Chapel Hill: University of North Carolina Press, 1979), 158–190. 17. Reprinted in Horwitz, Transformation of American Law, 7; Pound, Formative Era of American Law, 9.

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18. Jesse Root, “The Origin of Government and Laws in Connecticut, 1798,” in The Legal Mind in America, ed. Perry Miller (Garden City, NY: Anchor, 1962), 33–35. 19. Robert G. McCloskey, ed., The Works of James Wilson (Cambridge, MA: Belknap, 1967), 1:123–126. 20. Nathan Dane, A General Abridgement and Digest of American Law (Boston: Cummings, Hilliard, 1824), 4:665, 1:100. 21. Nathaniel Chipman, Sketches of the Principles of Government (1793), in Miller, Legal Mind in America, 24–25; Chipman, Principles of Government: A Treatise of Free Institutions (Burlington, VT: Edward Smith, 1833), 160–170; Wright, American Interpretations, 243–251. 22. Johnson and Graham’s Lessee v. M’Intosh, 8 Wheat. 543, 572 (1823); see also Calder v. Bull, 3 Dall. 386, 388 (1798). 23. Dane, A General Abridgment, 1:100. 24. David Hoffman, A Lecture, Introductory to a Course of Legal Study (Baltimore, MD: Joseph Neal, 1823), 1:64–66. 25. Yates v. People, 6 Johns. 337, 422–423 (1810); Friedman, History of American Law, 288; John T. Horton, James Kent: A Study in Conservatism, 1763–1847 (New York: Appleton-Century, 1939), 140–153; John B. Cassoday, “James Kent and Joseph Story,” Yale Law Journal 12 (1903): 146–153; Morgan Dowd, “The Influence of Story and Kent on the Development of the Common Law,” American Journal of Legal History 17 (1973): 221–273; David W. Raack, “‘To Preserve the Best Fruits’: The Legal Thought of Chancellor James Kent,” American Journal of Legal History 33 (1989): 320–366; McClellan, Joseph Story, 64–76. 26. Kent, Commentaries on American Law, 13th ed. (Boston: Little, Brown, 1884), 1:2–3; “A Lecture, Introductory to a Course of Law Lectures in Columbia College, Delivered February 2, 1824,” in Miller, Legal Mind in America, 95–96. Kent asserted that the “Christian nations” of Europe and America had a decided advantage in understanding and administering international law because of the “vast superiority” of their attainments in the arts, science, commerce, and forms of government and their familiarity with the “certain truths” of Christianity. Kent, Commentaries, 1:2–4. 27. Story, “The Value and Importance of Legal Studies” (Aug. 25, 1829), in The Miscellaneous Writings of Joseph Story, ed. William W. Story (Boston: Little, Brown, 1852), 533; R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 178–181. 28. “Natural Law,” in Encyclopedia Americana, ed. Francis Lieber (Philadelphia: Desilver, Thomas, 1836), 9:150–158. 29. Ibid. 30. “History and Influence of the Puritans” (Sept. 18, 1828), in Story, Miscellaneous Writings, 430–431, 437–439, 448–458. 31. Story, Miscellaneous Writings, 534–535. 32. Newmyer, Supreme Court Justice Joseph Story, 179–180. Story had two versions published: a two-volume set that went through several editions and a one-volume abridged version also published in 1833. Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, 1833).

420

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33. Story, Commentaries, 4th ed., §§ 325–326, 338–339, 340. Story also disputed that the American revolutionaries fought to secure Lockean natural rights, insisting instead that they sought to preserve their “birthright and inheritance” of the common law. Ibid., § 157. Also see McClellan, Joseph Story, 74–75. 34. Story, Commentaries, 4th ed., § 325. 35. Blackstone, Commentaries, 4:59. 36. 1 Ventr. 293; Rex v. Williams, 26 Howell’s St. Tr. 653 (K.B. 1797); Blackstone, Commentaries, 4:59–60. 37. Blackstone, Commentaries, 4:60. 38. 4 H. & McH. 429, 450 (Md. 1796). 39. People v. Ruggles, 8 Johns. 290 (N.Y. 1811). 40. Ibid., 297, 294. 41. Ibid., 294, 293. 42. Ibid., 295–296. 43. Ibid., 294–297. 44. Bell’s Case, 6 N.Y. City Hall Rec. 38, 3 Am. St. Tr. 558 (N.Y. Ct. Gen. Sess. 1821); Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); Commonwealth v. Kneeland, 20 Pick. (37 Mass.) 206, 213 (1836); State v. Chandler, 2 Harr. 553, 555 (Del. 1837). 45. Bell’s Case, 6 N.Y. City Hall Rec. 38, 40; People v. Porter, 2 Parker’s Crim. Rep. 14 (N.Y. Oyer & Term, 1823). 46. Horton, James Kent, 245–263; N. H. Carter and W. Stone, Reports of the Proceedings and Debates of the Convention of 1821 (Albany, NY, 1821), 462–465, 574–577; L. H. Clarke, Report of the Debates and Proceedings of the Convention of the State of New York, 1821 (New York: J. Seymour, 1821), 303–304. 47. Clarke, Report of the Debates, 303–304; Carter and Stone, Reports of the Proceedings, 462–464. 48. Bell’s Case, 6 N.Y. City Hall Rec. 40; Updegraph, 11 Serg. & Rawle 405; State v. Chandler, 2 Harr. 555; Commonwealth v. Kneeland, 37 Pick. 218; Horton, James Kent, 245–263; Kent to Story, June 19, 1833, in Life and Letters of Joseph Story, ed. William W. Story (Boston: Little, Brown, 1851), 2:134–135. 49. Clarke, Report of the Debates, 303. For different conclusions about this episode, see Kurt T. Lash, “The Second Adoption of the Free Exercise Clause: Religious Exemptions under the Fourteenth Amendment,” Northwestern University Law Review 88 (1994): 1106, 1118–1121; Updegraph, 11 Serg. & Rawle 405; State v. Chandler, 2 Harr. 555; Commonwealth v. Kneeland, 37 Pick. 218. 50. 11 Serg. & Rawle 394 (Pa. 1824). Updegraph was convicted under a 1700 colonial law which held that “whosoever shall wilfully, premeditatedly and despitefully blaspheme, and speak loosely and profanely of Almighty God, Jesus Christ, the Holy Spirit, or the Scripture of Truth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds.” Ibid., 398. 51. Ibid., 395–397. 52. Ibid., 399. 53. Ibid., 400, 406–407.

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54. Ibid., 400. 55. Ibid., 403 (the court reversed Updegraph’s conviction on a technical ground unrelated to these claims). 56. Ibid., 405; Zeisweiss v. James, 63 Pa. 465, 471 (1870); Manners v. Philadelphia Library Co., 93 Pa. 165, 172 (1880); Hart v. School Dist. of Sharpsville, 2 Lanc. 346, 350–355 (Pa. Com. Pl. 1885); Stevenson v. Hanyon, 7 Pa. Dist. 585, 590 (1898). 57. 2 Harr. 553, 554 (Del. 1837). 58. Ibid., 555, 557. “[T]he common law only punished [blasphemy] when it tended to create a riot or break the peace in some other mode, or subvert the very foundation on which civil society rested.” Ibid., 563. 59. Ibid., 557–563; see Story, “Value and Importance of Legal Studies” (1829), in Story, Miscellaneous Writings, 503; Story, “Christianity a Part of the Common Law,” 346. 60. 2 Harr. 562–563. 61. Ibid., 571–572. 62. Ibid., 571, 574–575. 63. City Council of Charleston v. Benjamin, 2 Strob. 508, 511 (S.C. 1846). See also Town Council of Columbia v. Duke and Marks, 2 Strob. 530 (S.C. 1833) (affirming the convictions of a Jewish merchant and an “infidel” merchant for opening shops on Sunday). 64. Benjamin, 2 Strob. 518, 520. 65. Ibid., 527, 521. 66. Ibid., 523. 67. Ibid., 524. 68. Ibid., 523, 522, 527.

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1. Banner, “When Christianity Was Part of the Common Law,” 28. 2. Updegraph, 11 Serg. & Rawle 399, 406. See the reference to the 1818 blasphemy conviction of a defendant named Murry in Philadelphia’s Mayor’s Court. Ibid., 403. 3. Descriptions of Kneeland’s life are found in Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (Cambridge, MA: Harvard University Press, 1957), 43–58; Henry Steele Commager, “The Blasphemy of Abner Kneeland,” New England Quarterly 8 (1935): 29–41; Theodore Schroeder, Constitutional Free Speech Defined and Defended (New York: Free Speech League, 1919), 72–88; Samuel Gridley Howe, “Atheism in New England,” New England Magazine 7 (Dec. 1834): 500–509, and 8 (Jan. 1835): 53–62. 4. Commonwealth v. Kneeland, 20 Pick. (37 Mass.) 206, 207 (1836). The indictment and arguments for the trials that were prepared by the prosecutor, Samuel Parker, are in Report of the Arguments of the Attorney of the Commonwealth, at the Trials of Abner Kneeland, for Blasphemy (Boston: Beals, Homer, 1834), in Lawson, American State Trials, 13:450–575 (hereinafter 13 Am. State Tr.). 5. 13 Am. State Tr. 451. The best record of the arguments is from the first trial in Boston Municipal Court. According to its editor, those arguments were representative of the points made in all four trials. Ibid., 450.

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6. Ibid., 450, 456–461. 7. Ibid., 455–456, 488–495. 8. Ibid., 474, 498–499, 502, 512. Henry Steele Commager noted that Judge Thacher was so biased against Kneeland that, in his written instructions to the jury, he intentionally inserted a comma between Kneeland’s words “God” and “which,” thereby changing the meaning of the declaration from “Universalists believe in a God which I do not” to “Universalists believe in a God, which I do not.” Ibid., 507; Commager, “The Blasphemy of Abner Kneeland,” 35. 9. 13 Am. State Tr. 533. 10. Kneeland, 20 Pick. 211–217. 11. Ibid., 217–221. 12. Ibid., 233–235. 13. Ibid. 14. Ex rel. Reynolds (N.J. Com. Pl. 1887), in Lawson, American State Trials, 16:799–857; “Current Topics,”Albany Law Journal 35 (June 4, 1887): 441. See also State v. Mockus, 113 A. 39 (Me. 1921). 15. Langhorn’s Trial, 7 How. St. Tr. 418, 481 (1679); Lady Lisle’s Trial, 11 How. St. Tr. 298, 325 (1685), both reprinted in John Henry Wigmore, Evidence in Trials at Common Law, 2nd ed. (Boston: Little, Brown, 1923), §§ 936, 1816–1817; Curtiss v. Strong, 4 Day 51, 56 (Conn. 1809). 16. D. X. Junkin, The Oath: A Divine Ordinance, and an Element of the Social Constitution (New York: Wiley and Putnam, 1845), 1; Thorpe, Federal and State Constitutions. 17. Omichund v. Barker, 1 Atk. 22, 45 (K.B. 1744) (extending the privilege to non-Christians); Commonwealth v. Buzzell, 16 Pick. 153, 156 (Mass. 1834). 18. Jackson v. Gridley, 18 Johns. 98, 106 (1820). 19. Curtiss, 4 Day 55–56. 20. Atwood v. Welton, 7 Conn. 66, 73–74 (1828); Curtiss, 4 Day 55. 21. Atwood, 7 Conn. 76–78. 22. Ibid., 84. 23. Junkin, The Oath, 2–3, 24, 217. 24. Ibid., 4. 25. Ibid. 26. Perry’s Adm’r v. Stewart, 2 Harr. 37 (Del. 1835). 27. Wakefield v. Ross, 28 Fed. Cas. 1346, 1347n2 (Case No. 17050) (C.C. D.R.I. 1827). 28. R. R. Henman, The Blue Laws of New Haven Colony (Hartford, CT: Case, Tiffany, 1838), cited in David N. Laband and Deborah Hendry Heinbuch, Blue Laws: The History, Economics, and Politics of Sunday Closing Laws (Lexington, MA: Lexington, 1987), 8, 36–42; Blakely, American State Papers, 668–730. See, generally, Thorpe, Federal and State Constitutions. 29. Reprinted in Laband and Heinbuch, Blue Laws, 17–27, 28–29. Also see An Act for the Better Observation of the Lord’s Day, Commonly Called Sunday, Laws of South-Carolina (1712), in The Earliest Printed Laws of South Carolina 1692–1734, ed. John

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D. Cushing (Wilmington, DE: Michael Glazier, 1978), 1:230–234; An Act for the Better Observation and Keeping of the Lord’s Day, Commonly Called Sunday, and for the More Effectual Suppression of Vice and Immorality, chap. XIV, Laws of North-Carolina (1741), in The Earliest Printed Laws of North Carolina 1669–1751, ed. John D. Cushing (Wilmington, DE: Michael Glazier, 1977), 1:142–145. 30. Chap. XIV, Laws of North-Carolina (1741), 1:142–143. 31. Laband and Heinbuch, Blue Laws, 34, 41, 43, 51–52, 53–54; Laws of SouthCarolina, 230; Blakely, American State Papers, 41; Connecticut statute reprinted in Alonzo T. Jones, The National Sunday Law (Oakland, CA: Pacific, 1889), 81. 32. Timothy Dwight, Travels in New-England and New-York (New Haven, CT: Timothy Dwight, 1822), 4:255. 33. Blakely, American State Papers, 45–46, 47–49, 53–54, 57; District of Columbia v. Robinson, 30 App. D.C. 283 (1908). 34. 8 Johns. 290, 297 (N.Y. 1811). 35. 13 Mass. 324 (1816). 36. Ibid., 346–352. 37. Ibid., 345–347. 38. 3 Serg. & Rawle 48, 49–51 (Pa. 1817). 39. Ibid., 51. 40. Omit v. Commonwealth, 21 Pa. 426, 435 (1853). 41. State v. Fearson, 2 Md. 310, 313 (1852); Stockden v. State, 18 Ark. 186, 187 (1856). 42. Kilgour v. Miles, 6 G. & J. 268, 274 (Md. 1834). 43. O’Donnell v. Swenney, 5 Ala. 467, 469 (1843). 44. Shover v. State, 10 Ark. 259, 263 (1850); Lindenmuller v. the People, 33 Barb. 548, 568 (1861). 45. Pearce v. Atwood, 13 Mass. 347. 46. City Council v. Benjamin, 2 Strob. 508 (S.C. 1846); Town Council v. Duke and Marks, 2 Strob. 530 (S.C. 1833); Shover v. State, 10 Ark. 259, 263–264 (1850). 47. Parker v. State, 16 Lea. 476, 479–480 (Tenn. 1886). See Neuendorff v. Duryea, 69 N.Y. 557, 561 (1877); Scoles v. State, 47 Ark. 476 (1886); People v. Moses, 140 N.Y. 214 (1893); Judefind v. State, 28 A. 405 (Md. 1894). 48. Story v. Elliot, 8 Cow. 27 (N.Y. 1827); Watts v. Van Ness, 1 Hill 76 (N.Y. 1841); O’Donnell v. Sweeney, 5 Ala. 467 (1843); Allen v. Deming, 14 N.H. 133 (1843); Bosworth v. Swaney, 10 Met. 363 (Mass. 1845); Gregg v. Wyman, 4 Cush. 322 (Mass. 1849); Way v. Foster, 1 Allen 408 (Mass. 1861); Jones v. Andover, 10 Allen 18 (Mass. 1865); Neal v. Crew, 12 Ga. 93 (1852); Sutton v. Town of Wauwatosa, 29 Wis. 21 (1871); Weldon v. Colquitt, 62 Ga. 449 (1879). 49. Story v. Elliot, 8 Cow. 27, 31 (N.Y. 1827). 50. Neal v. Crew, 12 Ga. 93, 100 (1852). 51. Towle v. Larrabee, 26 Me. 464, 469 (1847); Sellers v. Dugan, 18 Ohio 489, 493 (1849). 52. McGrath v. Merwin, 112 Mass. 467, 470 (1873). 53. Towle, 26 Me. 464; Kountz v. Price, 40 Miss. 341, 348 (1866).

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54. Shover v. State, 10 Ark. 263; Omit v. Commonwealth, 21 Pa. 435; State v. Ambs, 20 Mo. 215, 218–219 (1854); Lindenmuller v. the People, 33 Barb. 568; Brimhall v. Van Campen, 8 Minn. 1, 5 (1862); Kountz v. Price, 40 Miss. 348. 55. Omit v. Commonwealth, 21 Pa. 435; Commonwealth v. Jeandelle, 14 Phil. Rep. 509, 512–513 (Pa. Comm. Ct. 1859). 56. State v. Ambs, 20 Mo. 218–219. 57. Story to Rev. John Brazer, Feb. 4, 1827, in Story, Life and Letters, 511–514; Newmyer, Supreme Court Justice Joseph Story, 18–19, 28–31; William R. Hutchinson, The Modernist Impulse in American Protestantism (New York: Oxford University Press, 1982), 12–40; Story, Miscellaneous Writings, 180–181; Journal of Debates, 560–562. 58. Newmyer, Supreme Court Justice Joseph Story, 29; Story to Rev. Brazer, Feb. 4, 1827, in Story, Life and Letters, 1:513; see also ibid., 2:612. 59. Story to William Williams, Mar. 6, 1824, in Story, Life and Letters, 1:442. See also “Characteristics of the Age: A Discourse Pronounced at Cambridge, before the Phi Beta Kappa Society of Harvard University, August 31, 1826,” in Story, Miscellaneous Writings, 340–378. 60. Terrett v. Taylor, 9 Cranch 43, 47–48, 50 (Va. 1815). The statute repealed several prior laws recognizing the right of the Episcopal Church to acquire the land and directed trustees to sell the land for the benefit of the poor. 61. Ibid., 49. 62. Jefferson’s Act for Establishing Religious Freedom superseded section 16 of the Virginia Declaration of Rights (1776); see Kurland and Lerner, Founders’ Constitution, 5:84; Levy, Establishment Clause, 25–62; Story to Rev. John Brazer, Feb. 16, 1832, in Story, Life and Letters, 2:82–83. 63. Howe, The Garden and the Wilderness, 34; McClellan, Joseph Story, 118–159. 64. Thomas Jefferson to John Cartwright, June 15, 1824, in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (Washington, DC: Library of Congress, 1905), 16:42–52. 65. Paul Leicester Ford, ed., Writings of Thomas Jefferson (New York: Putnam’s, 1892–1899), 10:360. Ford gives a date of 1764 for the essay, but Jefferson’s citation of the fourth volume of Blackstone’s Commentaries, published in 1769, makes that date too early. Thomas Jefferson to John Adams, Jan. 24, 1814, in The Writings of Thomas Jefferson, ed. H. A. Washington (New York: H. W. Derby, 1861), 6:303. See also Thomas Jefferson to Thomas Cooper, Feb. 10, 1814, ibid., 311–319. 66. Adams to Jefferson, Mar. 14, 1814, in Adams, Works of John Adams, 10:90. 67. Story to Everett, Sept. 15, 1824, in Story, Life and Letters, 1:429–430. 68. See Story to Jeremiah Mason, Jan. 10, 1822, in Story, Life and Letters, 1:411; Story to Samuel Fay, Feb. 18, 1830, ibid., 1:33; Story to Everett, May 31, 1832, ibid., 2:429–431. Newmyer maintains that Story had an “unforgiving hatred” of Jefferson. Newmyer, Supreme Court Justice Joseph Story, 29, 59–60, 70; McClellan, Joseph Story, 118–120; Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New York: Simon & Schuster, 1970), 309–310, 77–80; Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Norton, 1971), 220, 240–241. 69. “Value and Importance of Legal Studies,” in Story, Miscellaneous Writings, 517.

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70. Story, Life and Letters, 1:430. “Judicial notice” is the doctrine whereby courts will recognize the existence and truth of certain facts without requiring the production of supporting evidence. Henry Campbell Black, Black’s Law Dictionary, 4th ed. (St. Paul, MN: West, 1968), 986. 71. “Value and Importance of Legal Studies,” in Story, Miscellaneous Writings, 517. 72. American Jurist and Law Magazine, 9 (Apr. 1833): 346–348. Although the article was published in 1833, the number “1824” appears at the conclusion of the article next to the initials “J.S.” Thus, it is possible that Story wrote the piece shortly after Jefferson’s letter was brought to his attention. If so, the reason for the delay in publication is unclear. 73. 28 Fed. Cas. 1346, 1347n2 (D.R.I. 1827) (No. 17050); “Value and Importance of Legal Studies,” in Story, Miscellaneous Writings, 517. 74. Story, Commentaries §§ 1871–1877; McClellan, Joseph Story, 119, 128; Cord, Separation of Church and State, 12–15; Wallace v. Jaffree, 472 U.S. 38, 91–114 (1985) (Rehnquist, J., dissenting). 75. Story, Commentaries § 1871. 76. Ibid., §§ 1871, 1873. 77. Ibid., § 1874. 78. Ibid., § 1872. 79. Ibid., § 1877. 80. Annals, 1:448–459, 757–759; Levy, Establishment Clause, 88–89. 81. Madison to Edward Livingston, July 10, 1822, in Alley, James Madison on Religious Liberty, 83; Madison to Robert Walsh, Mar. 2, 1819, ibid., 81. 82. Gaustad, Faith of Our Fathers,; Kramnick and Moore, Godless Constitution, 26–45. 83. Story, Commentaries § 1873. 84. Story to Rev. Jasper Adams, May 14, 1833, reprinted in McClellan, Joseph Story, 139–140; Dreisbach, Religion and Politics, 115–117. 85. 2 How. 127, 133 (1844). 86. Edwin P. Whipple, ed., The Great Speeches and Orations of Daniel Webster (Boston: Little, Brown, 1910), 505–531, 526, 525. 87. Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (1824); Whipple, Great Speeches, 529–530. 88. Joseph Story to Mrs. Joseph Story, Feb. 7, 1844, in Story, Life and Letters, 468. 89. 2 How. 198. 90. Ibid., 200. 91. Ibid., 199–200. While Story’s analysis may be correct under a narrow reading of the devise, the provision implicitly prohibited the teaching of religious tenets by anyone through its requirement that the school be “free from . . . clashing doctrines and sectarian controversy.” Ibid., 133. 92. Ibid., 199. 93. Ibid., 198. 94. Story, Commentaries §§ 1873, 1877; State v. Williams, 26 N.C. 400 (1844). 95. Story to Mrs. Story, in Story, Life and Letters, 468; Story to Kent, Aug. 31, 1844, ibid., 469.

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CHAPTER

206–211

7

1. State v. Williams, 26 N.C. 400 (1844); Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 156 (N.Y. Super. 1850); Bloom v. Richards, 2 Ohio St. 387 (1853); Hale v. Everett, 53 N.H. 9 (1868); Lindenmuller v. State, 33 Barb. 548 (N.Y. Sup. 1861). 2. See, generally, Friedman, History of American Law; Horwitz, Transformation of American Law; Kermit L. Hall, The Magic Mirror (New York: Oxford University Press, 1989); Charles Warren, A History of the American Bar (New York: Fetig, 1966); Pound, Formative Era of American Law; Charles M. Haar, The Golden Age of American Law (New York: Braziller, 1965). 3. Horwitz, Transformation of American Law, 1, 4; Willard Hurst, “Book Review,” American Journal of Legal History 21 (1977): 175. 4. More recent scholarship has challenged the view of the law as necessarily instrumental and transformative, portraying legal changes as more isolated from economic developments. See Christopher L. Tomlins, “A Mirror Crack’d? The Rule of Law in American History,” William and Mary Law Review 32 (1991): 353–397. 5. Peter du Ponceau, “A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States” (1824), in Miller, Legal Mind in America, 111; Warren, History of the American Bar, 211–239; Harold M. Hyman and William M. Wiecek, Equal Justice under Law (New York: Harper & Row, 1982), 44–45; Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (Westport, CT: Greenwood, 1981). 6. Timothy Walker, “Codification,” Western Law Journal 1 (June 1844): 433, 437. 7. William Sampson, “An Anniversary Discourse,” in Miller, Legal Mind in America, 122; Robert Rantoul, “Oration at Scituate” (1836), in Haar, Golden Age, 436; Walker, “Codification,” 439. 8. John Milton Goodenow, Historical Sketches of the Principles and Maxims of American Jurisprudence (Steubenville, OH: James Wilson, 1819), 3, 7; du Ponceau, “A Dissertation,” 111–112. 9. Rantoul, “Oration at Scituate,” 435; Sampson, “An Anniversary Discourse,” 122; Walker, “Codification,” 438. 10. Kent, Commentaries, 1:321–322; Raack, “To Preserve the Best Fruits,” 320, 336; Rufus Choate, “The Position and Functions of the American Bar” (1845), in Miller, Legal Mind in America, 265. 11. Walker, “Codification,” 437. 12. Goodenow, Historical Sketches, 7; Walker, “Codification,” 437–439. 13. Story, “Codification of the Common Law,” in Story, Miscellaneous Writings, 698–735; Story, Life and Letters, 2:241–251. 14. Story, “Codification of the Common Law,” 698–735; Story, Life and Letters, 2:241–251; “Written and Unwritten Systems of Laws,” American Jurist and Law Magazine 5 (1831): 29. 15. Newmyer, Supreme Court Justice Joseph Story, xiv; Raack, “To Preserve the Best Fruits,” 338–339, 363–365; Kent, Commentaries, 4:51, 75, 326, 380–381, 407, 520. 16. Story, “Discourse Pronounced upon the Inauguration of the Author as Dane Professor of Law in Harvard University, August 25th, 1829,” in Miller, Legal Mind in

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America, 182, 184; Kent, “Introductory to a Course of Law Lectures, 1824,” ibid., 95; see also Josiah Quincy, “An Address Delivered at the Dedication of the Dane Law College in Harvard University, October 23, 1832,” ibid., 208–209. 17. James M. Walker, The Theory of the Common Law (Boston: Little, Brown, 1852), 1–2. 18. Perit v. Wallis, 2 Dall. 252, 255 (Pa. 1796). See also Wharton v. Morris, 1 Dall. 125, 126 (Pa. 1795); Seymour v. Delancey, 6 Johns. 222 (N.Y. Ch. 1822), rev’d, 3 Cow. 445 (N.Y. 1824); Horwitz, Transformation of American Law, 160–167; Hall, Magic Mirror, 119–120. 19. Guilian C. Verplanck, An Essay on the Doctrine of Contracts, Being an Inquiry How Contracts Are Affected in Law and Morals (New York: Carvill, 1825), 96, 104–106. 20. Dane, A General Abridgment, 1:100; Horwitz, Transformation of American Law, 181, 183–184; Friedman, History of American Law, 281, 287. 21. Dane, A General Abridgment, 1:100; see also Joseph Story, Commentaries on Equity Jurisprudence (Boston: Little, Brown, 1836), 249–250; William W. Story, A Treatise on the Law of Contracts (Boston: Little, Brown, 1844), 4; Horwitz, Transformation of American Law, 180–185. 22. Walker, “Introductory Lecture on the Dignity of the Law as a Profession, Delivered at Cincinnati College, November 4, 1837,” in Miller, Legal Mind in America, 240–241. 23. Dane, A General Abridgment, 6:664. 24. Walker, “Introductory Lecture,” 240–241. 25. Spear v. Grant, 16 Mass. 9 (1819); Commonwealth v. Alger, 61 Mass. 53, 84 (1851). 26. Butts v. Swartwood, 2 Cow. 431, 432 (N.Y. 1823); Brock v. Milligan, 10 Ohio 121, 125 (1840); Adams v. Gay, 19 Vt. 358, 367 (1847). 27. Adams, 19 Vt. 367; Jones v. Harris, 1 Strob. 160, 163 (S.C. 1846) (commenting on “the great diversity of religious faith and practice prevailing among those people who inhabit our own and other American states”); Arnold v. Arnold, 13 Vt. 360, 365 (1841); Perry v. Commonwealth, 44 Va. 632, 641 (1846); Bennett v. State, 31 Tenn. 410, 413 (1852); Central Military Tract RR v. Rockafellow, 17 Ill. 541, 552 (1856). 28. Arnold, 13 Vt. 366; Brock v. Milligan, 10 Ohio 125. 29. Simon Greenleaf, A Treatise on the Law of Evidence (1842; reprint, Boston: Little, Brown, 1876), § 369. 30. Blocker v. Burness, 2 Ala. 354 (1841); Smith v. Coffin, 18 Me. 157 (1842); Jones v. Harris, 1 Strob. 160 (S.C. 1846); Cubbison v. M’Creary, 2 Watts & Serg. 262, 263 (Pa. 1841); Bennett v. State, 31 Tenn. 410 (1852); Shaw v. Moore, 49 N.C. 25 (1856); Scott v. Hooper, 14 Vt. 535 (1842); Thurston v. Whitney, 2 Cush. 104 (Mass. 1848); Central Military Tract RR v. Rockafellow, 17 Ill. 541 (1856); Blair v. Seaver, 26 Pa. 274 (1856). 31. Blair, 26 Pa. 276–277. 32. Blocker v. Burness, 2 Ala. 354, 355 (1841). 33. Central Military Tract RR, 17 Ill. 552–553. See also Clinton v. State, 33 Ohio St. 27, 32–33 (1877); Shaw v. Moore, 49 N.C. 25, 29 (1856). 34. Brock v. Milligan, 10 Ohio 121, 125–126 (1840).

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35. Arnold, 13 Vt. 365. See also Smith v. Coffin, 18 Me. 157, 165–166 (1842) (Emery, J., dissenting). 36. Perry v. Commonwealth, 44 Va. 632, 641–643 (1846). 37. People v. Jenness, 5 Mich. 305, 319 (1858); Stanbro v. Hopkins, 28 Barb. 265 (N.Y. 1858); Commonwealth v. Burke, 82 Mass. 33 (1860); Fuller v. Fuller, 17 Calif. 605 (1861). 38. State v. Elliott, 45 Iowa 486, 489 (1877); Searcy v. Miller, 57 Iowa 613, 618–619 (1881). See also Stanbro v. Hopkins, 28 Barb. 265 (N.Y. Sup. 1858); People v. Jenness, 5 Mich. 305 (1858); Commonwealth v. Burke, 82 Mass. 33 (1860); Bush v. Commonwealth, 80 Ky. 244 (1882); Londener v. Lichtenheim, 11 Mo. App. 385 (1882); Rudolph v. Landwerlen, 92 Ind. 34 (1883); Hroneck v. People, 24 N.E. 861 (Ill. 1890); State v. Turner, 36 S.C. 534 (1892): Dickenson v. Beal, 62 P. 724 (Kans. 1900). 39. People v. Sanford, 43 Calif. 29, 34 (1872); People v. Chin Mook Sow, 51 Calif. 597 (1877). 40. Bush v. Commonwealth, 80 Ky. 244, 249 (1882); People v. Jenness, 5 Mich. 305 (1858); City of Shreveport v. Levy, 26 La. Ann. 671 (1874); People v. Copsey, 71 Calif. 548 (1887); Freeman v. Dempsey, 4 Ill. App. 554 (1891); Dickson v. Beal, 62 P. 724 (Kans. 1900); Brink v. Stratton, 68 N.E. 148 (N.Y. 1903). 41. Clinton v. State, 33 Ohio St. 27, 33–34 (1877); Arnd v. Amling, 53 Md. 192 (1879); Free v. Buckingham, 59 N.H. 219 (1879); Priest v. State, 10 Neb. 393 (1880); State v. Washington, 22 So. 841 (La. 1897); Beason v. Moore, 31 S.E. 456 (Ala. 1902). 42. Vidal v. Girard’s Executors, 43 U.S. 127 (1844); Ayers v. the Methodist Church, 3 Sand. 352, 377 (N.Y. Sup. 1849); Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 156 (N.Y. Sup. 1850); Zeisweiss v. James, 63 Pa. 465 (1870); Manners v. Philadelphia Library Co., 93 Pa. 165 (1880). 43. Ayers, 3 Sand. 359, 377. 44. Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 156, 181 (N.Y. Super. 1850). 45. Ibid., 182. 46. Ibid. 47. Grimes’ Executors v. Harmon, 35 Ind. 198, 213 (1871). See also Barnum v. Mayor, 62 Md. 275 (1884) (refusing to strike a condition in a will because it conflicted with a religious practice). Cf. Zeisweiss v. James, 63 Pa. 465 (1870); Manners v. Philadelphia Library Co., 93 Pa. 165 (1880). 48. Maxey v. Bell, 41 Ga. 183, 184–185 (1870). 49. Levy, Establishment Clause, 1–24; Bond, Damned Souls, 130–131; Buckley, Church and State, 10–12. 50. Buckley, Church and State, 80–112. 51. Terrett v. Taylor, 13 U.S. 43 (1815); McGarvie, One Nation under Law, 174–175. 52. Frank Way, “Religious Disputation and the Civil Courts: Quasi-Establishment and Secular Principles,” Western Political Quarterly 42 (Dec. 1989): 523–543. 53. Attorney General v. Pearson, 3 Merivale 353 (1817), quoted in Watson v. Jones, 80 U.S. 679, 727 (1872). See Hendrickson v. Shotwell, 1 N.J. Eq. 577 (1832); App v. Lutheran Congregation, 6 Pa. 201 (1847); Mt. Zion Baptist Church v. Whitmore, 49 N.W. 81 (Iowa 1891).

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54. App v. Lutheran Congregation, 6 Pa. 201, *7; Hendrickson v. Shotwell, 1 N.J. Eq. 577, *34; Way, “Religious Disputation,” 529–533. 55. Calkins v. Cheney, 92 Ill. 463 (1879); Mt. Zion Baptist Church v. Whitmore, 49 N.W. 81, 86 (Iowa 1891); Lamb v. McCain, 29 N.E. 518 (Ind. 1891); Schradi v. Dornfeld, 55 N.W. 49 (Minn. 1893); Philomath College v. Wyatt, 37 P. 1022, 1023 (Oreg. 1894). 56. German Reformed Church v. Commonwealth, 3 Pa. St. 282, *8 (1846); App, 6 Pa. 201. 57. Watson v. Jones, 80 U.S. 679 (1872). 58. Ibid., 727. 59. Ibid., 728–729. 60. Ibid., 728, 733–734. 61. Ibid., 730. 62. Connitt v. Reformed Protestant Dutch Church, 9 Stickels 551, 562 (N.Y. 1874). See Holt v. Downs, 58 N.H. 170 (1877); White Lick Quarterly Meeting of Friends v. White Lick Quarterly Meeting of Friends, 89 Ind. 136 (1886); Gaff v. Greer, 88 Ind. 122 (1882); Dwenger v. Geary, 14 N.E. 903 (Ind. 1888); Lamb v. Cain, 29 N.E. 13 (Ind. 1891); Philomath College v. Wyatt, 37 P. 1022 (Oreg. 1894); Pounder v. Ash, 63 N.W. 48 (Neb. 1895); Moseman v. Heitshousen, 69 N.W. 957 (Neb. 1897). 63. Way, “Religious Disputation,” 536–537; Smith v. Nelson, 18 Vt. 511 (1846). 64. Lamb v. Cain, 29 N.E. 13, 21 (Ind. 1891); White Lick Quarterly Meeting of Friends v. White Lick Quarterly Meeting of Friends, 89 Ind. 136, *8 (1886); Harmon v. Dreher, 1 Speers Eq. 87, 120 (S.C. 1842); Pounder v. Ash, 63 N.W. 48, 50 (Neb. 1895). 65. Lyon v. Strong, 6 Vt. 219, 235 (1834) (Mattocks, J., dissenting). 66. Adams v. Gay, 19 Vt. 369. 67. Hadley v. Snevily, 1 Watts & Serg. 477, 479 (Pa. 1841). 68. Bloom v. Richards, 2 Ohio St. 387, 399, 404 (1853). 69. Mohoney v. Cook, 26 Pa. 343, 347, 349, 351 (1855). 70. McGatrick v. Wason, 4 Ohio St. 566, 573 (1855). 71. Ibid., 571. 72. Bennett v. Brooks, 91 Mass. 118, 121 (1864); Richmond v. Moore, 107 Ill. 429 (1883); Swann v. Swann, 21 Fed. 299, 301, 308 (E.D. Ark. 1884). 73. McGatrick, 4 Ohio St. 574; PW&B RR Co. v. Lehman, 56 Md. 197, 228 (1881); White v. Lang, 128 Mass. 598, 599 (1880); McGrath v. Merwin, 112 Mass. 467 (1873). 74. PW&B RR Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 64 U.S. 433, 436 (1860). 75. Ibid. 76. Lindenmuller v. the People, 33 Barb. 548, 567 (N.Y. Sup. 1861); Shover v. State, 10 Ark. 263, 264. 77. Commonwealth v. Eyre, 1 Serg. & Rawle 347, 350–351 (Pa. 1815); Commonwealth v. Wolf, 3 Serg. & Rawle 48 (Pa. 1817). 78. State v. Williams, 26 N.C. 400 (1844). 79. Ibid., 403, 404. 80. Ibid., 406–407.

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81. Ibid., 407. 82. State v. Brooksbank, 28 N.C. 73, 75 (1845). 83. Sellers v. Dugan, 18 Ohio 489, 490 (1849). 84. Ibid., 494–495, 497. See Adams, 19 Vt. 366 (noting that Sunday laws “must have reference . . . solely to preventing the disturbance of our citizens in their religious feelings or devotions”). 85. Bloom v. Richards, 2 Ohio St. 387, 390–392, 404 (1853); McGatrick v. Wason, 4 Ohio St. 566, 571 (1855). 86. Commonwealth v. Teamann, 1 Phil. Rep. 460, 461 (Pa. Quart. Sess. 1853); Smith v. Wilcox, 24 N.Y. 353, 354 (1862). 87. Melvin v. Easley, 52 N.C. 356, 360 (1860). 88. Wolf, 3 Serg. & Rawle 48; Specht v. Commonwealth, 8 Pa. 312 (1848); Johnston v. Commonwealth, 22 Pa. 102, 115 (1853). 89. Commonwealth v. Jeandelle, 14 Phil. Rep. 509, 512–513 (Pa. Com. Pl. 1859). 90. Commonwealth v. Jeandell, 2 Grant 507, 509 (Pa. 1859). In Commonwealth v. Nesbit, 34 Pa. 398, 404 (1859), the court observed that a problem with Sabbath enforcement was that well-intentioned people “might confuse themselves, by substituting their interpretation of a divine law on the same subject, in place of civil law.” 91. Sparhawk v. Union Pacific Passenger Railway Co., 54 Pa. 401 (1867). 92. See, generally, William Strong, The Right of the People to the Sunday Rest (New York: New York Sabbath Committee, 1880); William Strong, Two Lectures upon the Relations of Civil Law to Church Polity, Discipline, and Property (New York: Dodd & Mead, 1875). 93. 54 Pa. 406, 412. 94. Ibid., 409, 406, 411. 95. Ibid., 422–424, 427. 96. Ibid., 432, 443, 452. 97. Commonwealth v. Wolf (1817); Updegraph v. Commonwealth (1824); Omit v. Commonwealth (1853); Johnston v. Commonwealth (1853). 98. Granger v. Grubb, 7 Phil. Rep. 350, 355 (Pa. Com. Pl. 1870); Hart v. School Dist. of Sharpsville, 2 Lanc. L. Rev. 346, 351–355 (Pa. Com. Pl. 1885); Stevenson v. Hanyon, 7 Pa. Dist. 585, 589 (1898). In Zeisweiss v. James, 63 Pa. 465 (1870), the supreme court refused to allow a bequest to the Infidel Society of Philadelphia on the rationale that the organization did not meet a charitable purpose. Based on this holding, the court wrote that it was “unnecessary here to discuss the question under what limitations the principle is to be admitted that Christianity is part of the common law of Pennsylvania.” Ibid., 471. 99. Bennett v. Brooks, 91 Mass. 118, 121 (1864); People v. Bellet, 57 N.W. 1094, 1095 (Mich. 1894); State v. B&O RR Co., 15 W.Va. 362, 381, 384 (1879). 100. Keck v. City of Gainesville, 25 S.E. 559 (Ga. 1896). See also Kahn v. City of Macon, 22 S.E. 641 (Ga. 1895) (nuisance standard for gambling violation). 101. See Scoles v. State, 47 Ark. 476 (1886); Parker v. State, 16 Lea. 476, 480 (Tenn. 1886); Judefind v. State, 28 A. 405, 406–407 (Md. 1894); Lindenmuller v. the People, 33 Barb. 548, 569, 567 (N.Y. Sup. 1861); Neuendorff v. Duryea, 69 N.Y. 557, 561

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(1877); People v. Havnor, 149 N.Y. 195 (1896); People v. Dennin, 35 Hun. 327, 328 (N.Y. Sup. 1885); People v. DeMott, 38 Misc. 171, 173 (Sup. 1902); Ex rel. Poole v. Hesterberg, 43 Misc. 510 (Sup. 1904); People v. Poole, 89 N.Y.S. 773 (Sup. 1904); People v. C. Klinck Packing Co., 108 N.E. 278, 279 (N.Y. 1915). 102. Hennington v. Georgia, 17 S.E. 1009 (Ga. 1892); People v. Bellet, 57 N.W. 1094 (Mich. 1894); Kahn v. City of Macon, 22 S.E. 641 (Ga. 1895); Norfolk & W.R. Co. v. Commonwealth, 24 S.E. 837 (Va. 1896); Keck v. City of Gainesville, 25 S.E. 559 (Ga. 1896); Eden v. the People, 161 Ill. 296 (1896); State v. Petit, 77 N.W. 225 (1898); State v. Powell, 50 N.E. 900 (Ohio 1898). Earlier holdings of this type include Commonwealth v. Naylor, 34 Pa. 86 (1859); Thomasson v. State, 15 Ind. 449, 454 (1860); Karwisch v. the Mayor, 44 Ga. 204 (1871); Minnesota v. Ludwig, 21 Minn. 202 (1875); State v. Bott, 31 La. Ann. 663 (1879); Ex parte Burke, 59 Calif. 6 (1881). 103. Levy, Blasphemy, 400–401, 506–508. 104. State v. Kirby, 5 N.C. 254 (1809); State v. Ellar, 7 N.C. 224, 267 (1811); State v. Deberry, 27 N.C. 371, 373 (1845). See also State v. Baldwin, 18 N.C. 195, 197 (1835); State v. Jones, 31 N.C. 38, 40 (1848); State v. Powell, 70 N.C. 67, 68–69 (1874). 105. Greenwault and Moody’s Cases, 4 N.Y. City Hall 174 (N.Y. Ct. Gen. Sess. 1819); Holcomb v. Cornish, 8 Conn. 375 (1831); Johnson v. Barclay, 1 Harr. 1 (N.J. 1837); Odell v. Garnett, 4 Blackf. 549 (Ind. 1838); Goree v. State, 71 Ala. 7, 9 (1881). 106. State v. Graham, 35 Tenn. 134, 135 (1855). 107. Bell v. the State, 31 Tenn. 42, 44–45 (1851); State v. Graham, 35 Tenn. 139. 108. State v. Steele, 3 Heisk. 135, 136 (Tenn. 1871); Gaines v. the State, 75 Tenn. 410 (1881); Young v. the State, 78 Tenn. 165, 166 (1882). 109. Barker v. Commonwealth, 19 Pa. 412, 413 (1852); Commonwealth v. Mohn, 52 Pa. 241 (1866); Commonwealth v. Spratt, 14 Phil. Rep. 365, 366 (Pa. Quart. Sess. 1880); Commonwealth v. Linn, 27 A. 834, 844 (Pa. 1893). 110. Ex parte Delaney, 43 Calif. 478, 481 (1872); Goree v. State, 71 Ala. 7, 9 (1881). See also Arkansas v. Moser, 33 Ark. 140 (1878); Keller v. State, 8 S.W. 275 (Tex. 1888); State v. Freeman, 22 A. 621 (Vt. 1891); Taney v. State, 36 N.E. 295 (Ind. 1894); State v. Wiley, 24 So. 194 (Miss. 1898); cf. Bodenhamer v. State, 28 S.W. 507 (Ark. 1894). 111. See Commonwealth v. Kimball, 24 Pick. 359, 363 (Mass. 1837). 112. Specht, 8 Penn. 323; Bloom, 2 Ohio St. 391; McGatrick, 4 Ohio St. 571; Gabel v. Houston, 29 Tex. 335, 345 (1867). 113. Ex parte Newman, 9 Calif. 502 (1858); Warren L. Johns, Dateline Sunday, U.S.A. (Mountain View, CA: Pacific 1967), 79–94; Carl Brent Swisher, Stephen J. Field: Craftsman of the Law (1930; reprint, Chicago: University of Chicago Press, 1969), 77. 114. Ex parte Newman, 9 Calif. 506–507, 509. 115. Ibid., 513 (Burnett, J. concurring). 116. Ibid., 523–524 (Field, J., dissenting). 117. Ex parte Andrews, 18 Calif. 678, 682–683 (1861); Swisher, Stephen J. Field, 74, 81. 118. Andrews, 18 Calif. 682–683. 119. Ibid., 684–685. 120. Ex parte Burke, 59 Calif. 6, 13 (1881); Ex parte Koser, 60 Calif. 177, 178, 190 (1882).

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121. Koser, 60 Calif. 211. 122. Thomasson v. State, 15 Ind. 454; Gabel v. Houston, 29 Tex. 345–346. See State v. Ricketts, 74 N.C. 187 (1876); State ex rel. Walker v. Judge, 39 La. Ann. 132 (1887); State v. Powell, 50 N.E. 900 (Ohio 1898); State v. Dolan, 92 P. 995 (Idaho 1907); Carr v. State, 93 N.E. 1071 (Ind. 1911). 123. See chapter 10. 124. Compare Shover v. State, 10 Ark. 259 (1850); State v. Fearson, 2 Md. 310 (1852); State v. Ambs, 29 Mo. 215 (1854); and Mayor v. Linck, 12 Lea. 499 (Tenn. 1883) (identifying religious grounds), with State v. Brooksbank, 28 N.C. 73 (1845); Omit v. Commonwealth, 21 Pa. 426, 435 (1853); Fisher v. McGirr, 1 Gray 1 (Mass. 1854); Clader v. Kurby, 5 Gray 597 (Mass. 1855), Thomasson v. State, 15 Ind. 449 (1860); Gabel v. Houston, 29 Tex. 335 (1867); Karwisch v. Mayor, 44 Ga. 204 (1871); State v. Ludwin, 21 Minn. 202 (1875); State v. Bott, 31 La. Ann. 663 (1879); and Minden v. Silverstein, 36 La. Ann. 912 (1884) (relying on health-and-welfare grounds). 125. Gabel v. Houston, 29 Tex. 335, 344, 345 (1867); Commonwealth v. Naylor, 34 Pa. 86 (1859); Thomasson v. State, 15 Ind. 449, 454 (1860); Karwisch v. the Mayor, 44 Ga. 204 (1871); Minnesota v. Ludwig, 21 Minn. 202 (1875); State v. Bott, 31 La. Ann. 663 (1879); Ex parte Burke, 59 Calif. 6 (1881). 126. Minden v. Silverstein, 36 La. Ann. 912, 914 (1884). 127. State v. Powell, 50 N.E. 902; Minden v. Silverstein, 36 La. Ann. 912, 914 (1884). See also Swan v. Swan, 21 Fed. 303–305; Arnold v. Estate of Arnold, 13 Vt. 360 (1841); State v. Williams, 26 N.C. 400 (1844); Perry v. Commonwealth, 44 Va. 632 (1846); Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 156 (N.Y. Super. 1850); Bloom v. Richards, 2 Ohio St. 387 (1853); McGatrick v. Wason, 4 Ohio St. 566 (1855); Ex parte Newman, 9 Calif. 502 (1858); Sparhawk v. Union Pacific Passenger Railway Co., 54 Pa. 401 (1867); Maxey v. Bell, 41 Ga. 183 (1870); Board of Education v. Minor, 23 Ohio St. 211 (1873). 128. Carr, 93 N.E. 1078; Dolan, 92 P. 999.

CHAPTER

8

1. See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (prayer at school); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (religious school funding). 2. Benjamin Rush, “Thoughts upon the Mode of Education Proper in a Republic,” in Essays on Education in the Early Republic, ed. Frederick Rudolph (Cambridge, MA: Belknap, 1965), 17. 3. “Report on the Schools: The Conference Opposes the Secular Idea,” New York Times, Apr. 8, 1890, 8; Neil Gerard McCluskey, Public Schools and Moral Education (New York: Columbia University Press, 1958), 97. 4. See R. Laurence Moore, “Bible Reading and Nonsectarian Schooling: The Failure of Religious Instruction in Nineteenth-Century Public Education,” Journal of American History, 86 (2000): 1581–1599. 5. See B. J. McQuaid, “Religion in the Schools,” North American Review 132 (Apr. 1881): 332, 337 (criticizing the secularizing trend of the previous decade and the

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“perfunctory” use of the Bible). See also Moore, “Bible Reading and Nonsectarian Schooling,” 1594–1599. One could argue that a fourth phase occurred in nonsectarian education at the end of the nineteenth century with a reaction to secularization that brought about a reemphasis on Bible reading in the early twentieth century. See Jerome K. Jackson and Constance F. Malmberg, Religious Education and the State (Garden City, NY: Doubleday, Doran, 1928), 1 (discussing a post-1900 “trend very definitely in the direction of giving Bible reading more place in the public schools”). 6. See, generally, Hamburger, Separation of Church and State; Charles Leslie Glenn Jr., The Myth of the Common School (Amherst: University of Massachusetts Press, 1988); Lloyd P. Jorgenson, The State and the Non-Public School 1825–1925 (Columbia: University of Missouri Press, 1987). 7. Samuel Windsor Brown, The Secularization of American Education (New York: Teachers College, Columbia University, 1912); Washington Gladden, “Religion and the Schools,” Atlantic Monthly 115 (Jan. 1915): 57–68. See McCollum v. Board of Education, 333 U.S. 203 (1948); Engel v. Vitale, 370 U.S. 421 (1962); Abington Township School Dist. v. Schempp, 374 U.S. 203 (1963). 8. Elmer Ellsworth Brown, The Making of Our Middle Schools (New York: Longmans, Green, 1926), 31–58, 60–66, 72–77, 80–93; Bernard Bailyn, Education in the Forming of American Society (Chapel Hill: University of North Carolina Press, 1960), 11; David Nasaw, Schooled to Order: A Social History of Public Schooling in the United States (New York: Oxford University Press, 1979), 29–33; Carl F. Kastle, Pillars of the Republic: Common Schools and American Society, 1780–1860 (New York: Hill & Wang, 1983), 3–4, 13–29; Ellwood P. Cubberley, ed., Readings in Public Education in the United States (Boston: Houghton, Mifflin, 1934), 75–140. 9. South Carolina law of 1712, in Cushing, Earliest Printed Laws of South Carolina, 1:291, 294; Cubberley, Readings in Public Education, 47–51, 55; John H. Westerhoff III, McGuffey and His Readers: Piety, Morality, and Education in Nineteenth-Century America (Nashville, TN: Abingdon, 1978); Ruth Miller Elson, Guardians of Tradition: American Schoolbooks of the Nineteenth Century (Lincoln: University of Nebraska Press, 1964). 10. Noah Webster, “On Education of Youth in America” (1790), in Rudolph, Essays on Education, 65–66; David Tyack, Thomas James, and Aaron Benavot, Law and the Shaping of Public Education, 1785–1954 (Madison: University of Wisconsin Press, 1987), 23; Kastle, Pillars of the Republic, 8–12. In his influential Thoughts on Government (1776), John Adams also urged states to provide for a “liberal education of youth, especially of the lower class of people.” Reprinted in Peter S. Onuf, “State Politics and Republican Virtue,” in Toward a Usable Past: Liberty under State Constitutions, ed. Paul Finkelman and Stephen E. Gottlieg (Athens: University of Georgia Press, 1991), 101–104. 11. Jefferson, “A Bill for the More General Diffusion of Knowledge,” in The Essence of Jefferson, ed. Martin A. Larson (Washington, DC: Binns, 1977), 150; Webster, “On Education of Youth in America,” 49–51, 64–67. See also Robert M. Healey, Jefferson on Religion in Public Education (New York: Archon, 1970). 12. V. T. Thayer, Religion in Public Education (New York: Viking, 1947), 28–31, 10–13; Samuel Knox, “An Essay on the Best System of Liberal Education Adapted to

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the Genius of the Government of the United States,” in Rudolph, Essays on Education, 332–334; Elson, Guardians of Tradition, 41–42. 13. The most balanced analysis of nonsectarianism is Noah Feldman, “NonSectarianism Reconsidered,” Journal of Law and Politics 18 (2002): 65. 14. William Oland Bourne, History of the Public School Society of the City of New York (New York: William Wood, 1870), 9, 30–35, 641; Pratt, Religion, Politics, and Diversity, 158–203; Diane Ravitch, The Great School Wars: New York City, 1805–1973 (New York: Basic, 1974), 3–76; Jorgenson, The State and the Non-Public School, 14–15; Kastle, Pillars of the Republic, 31–32, 40–41. 15. Bourne, Public School Society, 6–7, 636–644; “1839 Report,” ibid., 641. 16. See Cubberley, Readings in Public Education, 54–56; Ravitch, Great School Wars, 18–19. 17. Ronald H. Baylor and Timothy J. Meager, The New York Irish (Baltimore, MD: Johns Hopkins University Press, 1996), 51; Timothy L. Smith, “Protestant Schooling and American Nationality, 1800–1850,” Journal of American History 53 (1966–1967): 679, 682; Feldman, “Non-Sectarianism,” 78–81. 18. Pratt, Religion, Politics, and Diversity, 165–167; Bourne, Public School Society, 49–50, 52–55, 88. The society’s initial request was that Bethel Baptist Church be excluded from receiving surplus state funds while its share of tuition funds be restricted to pay for only those students whose parents attended Bethel Baptist Church. Ibid., 52–55, 67. 19. The New York City mayor and Common Council supported the society’s position, arguing in their own memorial that the funding of “religious or ecclesiastical bodies is . . . a violation of an elementary principle in the politics of the State and country.” Bourne, Public School Society, 64–67, 70–75; Pratt, Religion, Politics, and Diversity, 167. 20. Pratt, Religion, Politics, and Diversity, 124–127; Ravitch, Great School Wars, 23–24. 21. Bourne, Public School Society, 51. See also “Memorial and Petition of the Mayor, Aldermen, and Commonalty of the City of New York” (referring to the Protestant charity schools as “sectarian”). Ibid., 66. Ray Allen Billington, The Protestant Crusade, 1800–1860 (New York: Macmillan, 1938), 35–37; Peter Guilday, The National Pastorals of the American Hierarchy, 1792–1919 (Washington, DC: National Catholic Welfare Council, 1923), 60–61, 74. 22. Bourne, Public School Society, 126, 128 (arguing that the “system of education” in such schools is “so combined with religious instruction”). 23. Ibid., 139–140. 24. Ibid., 145, 148. In urging the council to adhere to its 1825 decision, the Law Committee argued: Methodist, Episcopalian, Baptist, and every other sectarian school, [would] come in for a share of this fund. . . . It would be . . . no . . . less fatal in its consequences to the liberties and happiness of our country, to place the interest of the school fund at the disposal of sectarians. It is to tax the people for the support of religion, contrary to the Constitution, and in violation of their conscientious scruples. (Ibid., 140)

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25. Ravitch, Great School Wars, 9; Billington, Protestant Crusade, 32–38; Elson, Guardians of Tradition, 46–54; Guilday, National Pastorals, 27–28. See also “Pastoral Letter of 1840,” ibid., 134; Catholic Telegraph, Feb. 2, 1837, 67; Feb. 9, 1837, 74. 26. Catholic Telegraph, Sept. 5, 1840, 288; “Thirty-Third Annual Report” (1838), in Bourne, Public School Society, 640–641. 27. “Annual Message of Governor Seward,” in Bourne, Public School Society, 179; ibid., 178–323, 350–495, 496–520; New York Observer, Jan. 16, 1841, 10; Pratt, Religion, Politics, and Diversity, 175–190; Ravitch, Great School Wars, 46–76; Vincent P. Lannie, Public Money and Parochial Education: Bishop Hughes, Governor Seward, and the New York School Controversy (Cleveland, OH: Press of Case Western Reserve University, 1968). 28. People ex rel. Roman Catholic Orphan Asylum v. Board of Education, 13 Barb. 400, 410–412 (N.Y. Sup. 1851); St. Mary’s Industrial School v. Brown, 45 Md. 310 (1876) (a parochial training school is not a “public” school and is therefore ineligible for public funds). 29. Statute 1826, ch. 143, § 7 (Mar. 10, 1827). Feldman, “Non-Sectarianism,” 79: “In Boston, the drive for broadly available public education that culminated with [Horace] Mann’s appointment was not, to begin with, expressed in rhetoric of concern with Catholic immigration.” 30. Horace Mann, Common School Journal 1 (Nov. 1838): 14; Mann, Twelfth Annual Report of the Board of Education, Covering the Year 1848 (Boston: Dutton & Wentworth, 1849), 116–117. 31. Mann, “Lecture IV,” in Lectures and Annual Reports (Boston: M.T. Mann, 1867), 289–290; Mann, Go Forth and Teach: An Oration Delivered before the Authorities of the City of Boston, July 4, 1842 (Washington, DC: National Education Association, 1937), 44–45. 32. Feldman, “Non-Sectarianism,” 78–81; Jorgenson, The State and the Non-Public School, 37 (noting that Mann was sensitive to Catholic concerns). 33. Sidney E. Mead, The Lively Experiment (New York: Harper & Row, 1963), 67; Cubberley, Readings in Public Education, 202–212; Speech of Bishop John Hughes, in Bourne, Public School Society, 436; Raymond B. Culver, Horace Mann and Religion in the Massachusetts Public Schools (New Haven, CT: Yale University Press, 1929), 283; William Kailer Dunn, What Happened to Religious Education? The Decline of Religious Teaching in the Public Elementary School 1776–1861 (Baltimore, MD: Johns Hopkins University Press, 1958), 150–159; McCluskey, Public Schools and Moral Education, 55–65. 34. Mann, Twelfth Annual Report, 116–117, 122. 35. Ibid., 116; Mann to Matthew H. Smith, Oct. 19, 1846, in Cubberley, Readings in Public Education, 205–206; Culver, Horace Mann and Religion, 55–82. 36. Mann, Twelfth Annual Report, 113; Cubberley, Readings in Public Education, 208. 37. Mann, Twelfth Annual Report, 117–118. 38. B. P. Aydelott, Report on the Study of the Bible in the Common Schools (Cincinnati, OH: N. E. Johnson, 1837); George Burgess, “Thoughts on Religion and Public Schools,”

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264–268

American Journal of Education 2 (1856): 562, 567; D. Bethune Duffield, “Education: A State Duty,” American Journal of Education 3 (1857): 81, 97. 39. Duffield, “Education: A State Duty,” 96. 40. Aydelott, Report on the Study, 3–7; “Henry Ward Beecher on the School Question,” New York Tribune, Dec. 3, 1869, 5; Taylor Lewis, “The School Question,” Harper’s New Monthly Magazine 7 (1853): 269–272; Pratt, Religion, Politics, and Diversity, 193. 41. Burgess, “Thoughts on Religion and Public Schools,” 562–567; Duffield, “Education: A State Duty,” 95–97; Brown, Secularization of American Education, 56–81. 42. Moore, “Bible Reading and Nonsectarian Schooling,” 1590–1595. 43. Jorgenson, The State and the Non-Public School, 28. See also Hamburger, Separation of Church and State, 191–251; Glenn, Myth of the Common School; Billington, Protestant Crusade. 44. Gerald Shaughnessy, Has the Immigrant Kept the Faith? A Study of Immigration and Catholic Growth in the United States, 1790–1920 (New York: Macmillan, 1925), 73, 117, 125; Gaustad, Historical Atlas, 36; Baylor and Meager, New York Irish, 51. See also The Laity’s Directory to the (Catholic) Church Service (1822), reprinted in Catholic Historical Review 6 (Oct. 1920): 343–357. 45. Allen Nevins and Milton H. Thomas, eds., The Diary of George Templeton Strong (New York: Macmillan, 1952), 1:94; Samuel F. B. Morse, Foreign Conspiracy against the Liberties of the United States (New York: Leavitt, Lord, 1835), 57. 46. Morse, Foreign Conspiracy, 57, 51, 47; Nevins and Thomas, Diary of George Templeton Strong, 1:94; John Dowley, The History of Romanism (New York: Edward Walker, 1846), 612–625; Samuel F. B. Morse, Imminent Dangers to the Free Institutions of the United States through Foreign Immigration (New York: E. B. Clayton, Printer, 1835), 15; Billington, Protestant Crusade, 1–52. 47. Nicholas P. Canny, “The Ideology of English Colonization: From Ireland to America,” William and Mary Quarterly, 3rd ser., 30 (1973): 575–598; John Higham, Strangers in the Land: Patterns of American Nativism 1860–1925 (1955; reprint, New York: Atheneum, 1974), 7–11; Dale T. Knobel, “America for Americans”: The Nativist Movement in the United States (New York: Twayne, 1996), 1–39; Jean Baker, Ambivalent Americans: The Know-Nothing Party in Maryland (Baltimore, MD: Johns Hopkins University Press, 1977), 6–7, 49; Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport, CT: Greenwood, 1975), 41–73. 48. Dale T. Knobel, Paddy and the Republic: Ethnicity and Nationality in Antebellum America (Middleton, CT: Wesleyan University Press, 1986), 39–67; Richard J. Carwardine, Evangelicals and Politics in Antebellum America (New Haven, CT: Yale University Press, 1993), 38–39, 80–84; “Freeman’s Journal,” quoted in The Bible in the Public Schools: Opinions of Individuals and of the Press and Judicial Decisions (New York: J. W. Schermerhorn, 1870), 56–57; Stephen Macedo, Diversity and Distrust (Cambridge, MA: Harvard University Press, 2000), 57–63; Marc Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” First Amendment Law Review 2 (2003): 153–178. 49. New York Observer, Nov. 7, 1840, 178; May 2, 1840, 70.

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50. Ibid., Jan. 14, 1843, 6; Billington, Protestant Crusade, 157–158; New York Observer, May 2, 1840, 70. 51. Catholic Telegraph, Aug. 29, 1834, 316. 52. New York Observer, Jan. 28, 1843, 15; May 11, 1844, 75; May 25, 1844, 82–83; July 13, 1844, 110; Vincent P. Lannie and Bernard C. Diethorn, “For the Honor and Glory of God: The Philadelphia Bible Riots of 1840,” History of Education Quarterly 8 (Sept. 1968): 44–106; Knobel, “America for Americans,” 59–64; Billington, Protestant Crusade, 221–234. In The Philadelphia Riots of 1844, Michael Feldberg assigns primarily ethnic and economic causes for the riots. 53. Billington, Protestant Crusade, 322–338, 380–430; Jorgenson, The State and the Non-Public School, 85–93; John R. Mulkern, The Know-Nothing Party in Massachusetts (Boston: Northeastern University Press, 1990), 76, 94–103; Ronald P. Formisano, The Transformation of Popular Culture: Massachusetts Parties, 1790s–1840s (New York: Oxford University Press, 1983), 332–333. 54. Billington, Protestant Crusade, 412–417. Billington notes that nativism was most effective in the northeastern states and that Know-Nothings “showed little strength in the middle west.” Ibid., 391, 396. See also Baker, Ambivalent Americans, 47. 55. “No money shall be draw[n] from the treasury for the benefit of religious societies, or theological or religious seminaries.” Michigan Constitution of 1835, Art. I, sec. 5. Thorpe, Federal and State Constitutions, 4:1931; Thomas M. Cooley, Michigan: A History of Governments, 8th ed. (Boston: Houghton, Mifflin, 1897), 306–329; Billington, Protestant Crusade, 130; Jorgenson, The State and the Non-Public School, 101; Tyack et al., Law and the Shaping of Public Education, 79–86. 56. See Thorpe, Federal and State Constitutions, 2:1074 (Indiana); 2:1232 (Kansas); 4:1993 (Minnesota); 5:2925 (Ohio); 5:2998 (Oregon); 7:4078–4079 (Wisconsin). Jorgenson notes, however, that in 1853 Protestants helped to defeat a bill in the Minnesota territorial legislature that would have allowed any church-related school with more than twenty-five pupils to receive a share of the public school funds. The State and the Non-Public School, 103–104. 57. See Alice E. Smith, The History of Wisconsin (Madison: State Historical Society of Wisconsin, 1985), 1:588–589, 593; Richard N. Current, The History of Wisconsin (Madison: State Historical Society of Wisconsin, 1976), 2:162–169. See also Joseph A. Ranney, “‘Absolute Common Ground’: The Four Eras of Assimilation in Wisconsin Education Law,” Wisconsin Law Review (1998): 791, 793, 796–797 (placing the development of the parochial school systems after the enactment of the 1848 constitution). See also Lloyd P. Jorgenson, The Founding of Public Education in Wisconsin (Madison: State Historical Society of Wisconsin, 1956), 68–93 (not documenting anti-Catholic animus in the creation of Wisconsin’s public schools). 58. The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, ed. Charles Henry Carey (Salem, OR: State Printing Dept.,1926), 303–304 (remarks of Mr. Davey), 305 (remarks of Mr. Williams), 303 (remarks of Mr. Glover). 59. Richard W. Garnett, “The Theology of the Blaine Amendments,” First Amendment Law Review 2 (2002): 45, 69. See also “Secular and Sectarian Schools,”

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Harper’s New Monthly Magazine 40 (May 1870): 910 (comparing “Protestant Republican[s]” with “Roman Catholic Absolutist[s]”); Vincent P.Lannie, “Alienation in America: The Immigrant Catholic and Public Education in Pre-Civil War America,” Review of Politics 32 (Oct. 1970): 504–505; Macedo, Diversity and Distrust, 57–63; Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” 169–176 (documenting statements of Catholic officials that “gave rise to a generalized fear of an antidemocratic, autocratic Catholic Church which was seeking political power everywhere”). 60. William T. Harris, “The Division of School Funds for Religious Purposes,” Atlantic Monthly 38 (Aug. 1876): 175–176, 182–184. 61. Donahoe v. Richards, 38 Me. 379 (1854). 62. Ibid., 381, 386, 383; The Bible in Schools: Argument of Richard H. Dana Jr., Esq. (Boston: Massachusetts Sabbath School Society, 1855), 16–32; “The Right of the People to Have the Bible in Public Schools,” New York Observer, Aug. 31, 1854, 274–275. 63. Donahoe, 38 Me. 398–399, 401–402. 64. Ibid., 404–409. 65. Ibid., 409–410, 403. 66. Boston Daily Evening Telegraph, Mar. 15, 1859, 2, 4; Mar. 16, 1859, 2; New York Times, Mar. 16, 1859, 1; New York Observer, Mar. 24, 1859, 91. 67. Boston Daily Evening Telegraph, Mar. 18, 1859, 2; Mar. 19, 1859, 2, 4; Commonwealth v. Cooke, 7 Am. L. Reg. 417, 418 (Mass. Police Ct. 1859). 68. Boston Daily Evening Telegraph, Mar. 18, 1859, 2; Mar. 21, 1859, 2; Mar. 22, 1859, 2, 4; Mar. 24, 1859, 4; Mar. 25, 1859, 2; Henry F. Durant, The Arguments in the Case of the Eliot School Rebellion (Boston: Hubbard W. Swett, 1859). 69. Cooke, 7 Am. L. Reg. 423 (internal quotation marks omitted). 70. New York Times, July 11, 1859, 3. 71. Spiller v. Inhabitants of Woburn, 94 Mass. 127, 129 (1866). 72. New York Times, Dec. 10, 1859, 4. 73. “Our Schools,” Harper’s New Monthly Magazine (Mar. 1860): 550, 554. 74. Board of Education v. Minor, 23 Ohio St. 211 (1873). Articles concerning the Cincinnati Bible controversy appeared in the New York Times, New York Tribune, Harper’s Weekly, New York Observer, Methodist Christian Advocate, Christian Statesman, Catholic World, Catholic Telegraph, Index, and Presbyterian Quarterly and Princeton Review, among others. See also Robert G. McCloskey, ed., The Bible in the Public Schools: Arguments in the Case of John D. Minor, et al. versus the Board of Education of the City of Cincinnati et al. (Cincinnati, OH: Robert Clarke, 1870; reprint, New York: Da Capo, 1964); The Bible in the Public Schools: Opinions of Individuals and of the Press, and Judicial Decisions (New York: J. W. Schermerhorn, 1870). 75. Catholic Telegraph, Sept. 3, 1840, 288; Nancy R. Hamant, “Religion in the Cincinnati Schools 1830–1900,” Bulletin of the Historical and Philosophical Society of Ohio 21 (Oct. 1963): 239–251; William A. Baughin, “The Development of Nativism in Cincinnati,” Cincinnati Historical Society Bulletin 22 (Oct. 1964): 240–255; F. Michael Perko, “The Building Up of Zion: Religion and Education in Nineteenth Century Cincinnati,” Cincinnati Historical Society Bulletin 38 (Summer 1980): 96–114.

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76. Catholic Telegraph, Sept. 3, 1840, 288; McCloskey, Bible in the Public Schools, x; Harold M. Helfman, “The Cincinnati ‘Bible War,’ 1869–1870,” Ohio State Archaeological and Historical Quarterly 60 (1951): 369, 370; Perko, “Building Up of Zion,” 101–104. 77. McCloskey, Bible in the Public Schools, x; Amory D. Mayo, Religion in the Common Schools: Three Lectures Delivered in the City of Cincinnati, in October, 1869 (Cincinnati, OH: Robert Clarke, 1869), 3–5; Helfman, “The Cincinnati ‘Bible War,’” 370–380; Hamant, “Religion in the Cincinnati Schools,” 242; Robert Michaelsen, “Common School, Common Religion? A Case Study in Church-State Relations, Cincinnati, 1869–70,” Church History 38 (1969): 201–217. 78. “Conspiracy against the School System,” Christian Advocate, Nov. 25, 1869, 372; Mayo, Religion in the Common Schools, 12; Cincinnati Gazette, Sept. 13, 1869, in Helfman, “The Cincinnati ‘Bible War,’” 375; New York Observer, Oct. 14, 1869, 321. 79. Mayo, Religion in the Common Schools, 28, 17; “Conspiracy against the School System,” Christian Advocate, Nov. 25, 1869, 372; “The Common School War,” ibid., Dec. 2, 1869, 380. 80. Mayo, Religion in the Common Schools, 36, 12; “The Bible in Schools,” Christian Advocate, Nov. 18, 1869, 364; “Recent Publications on the School Question,” Presbyterian Quarterly and Princeton Review (Apr. 1870): 314, 319–321. 81. New York Tribune, Dec. 3, 1869, 5. 82. Samuel T. Spear, Religion and the State; or, The Bible and the Public Schools (New York: Dodd, Mead, 1876); “Reviews and Literary Notices,” Atlantic Monthly 25 (May 1870), 638–639; “The Battle of the Schools,” Harper’s Weekly, Dec. 18, 1869, 802. 83. Harper’s Weekly, Dec. 18, 1869, 802. 84. Helfman, “The Cincinnati ‘Bible War,’” 380–381; Michaelsen, “Common School, Common Religion?” 206–212. 85. McCloskey, Bible in the Public Schools, xi–xii; Helfman, “The Cincinnati ‘Bible War,’” 370, 382; Michaelsen, “Common School, Common Religion?” 207–208; The Bible in the Public Schools: Proceedings and Addresses at the Mass Meeting, Pike’s Music Hall, Cincinnati, Tuesday Evening, September 28, 1869, with a Sketch of the Anti-Bible Movement (Cincinnati, OH: Gazette Steam Book and Job Printing House, 1869). 86. Ohio Constitution, Art. I, sec. 7; Art. VI, sec. 2; Bloom v. Richards, 2 Ohio St. 387 (1853); McGatrick v. Wason, 4 Ohio St. 566 (1855). 87. McCloskey, The Bible in the Public Schools, 50–51. 88. Ibid., 324–327. Dictum indicates a portion of an opinion that has no legal bearing on the decision and usually represents a judge’s personal feelings on a particular matter. See Henry Campbell Black, Black’s Law Dictionary, 4th ed. (St. Paul, MN: West, 1968), 541. 89. McCloskey, The Bible in the Public Schools, 253–254, 256. 90. Ibid., 77–96. 91. Ibid., 253, 260–265. 92. Ibid., 254–256. 93. Remark of J. B. Stallo, ibid., 77. 94. New York Times, Dec. 3, 1869, 1; New York Tribune, Dec. 4, 1869, 3; New York Times, Feb. 16, 1870, 5.

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95. McCloskey, The Bible in the Public Schools, 363–371. 96. Ibid., 379–383. 97. Ibid., 392, 394–396, 403. 98. Ibid., 406–408. 99. Ibid., 407–415. 100. Ibid., 416. 101. New York Tribune, Feb. 16, 1870, 4, 8; Ward M. McAfee, Religion, Race, and Reconstruction (Albany: State University of New York Press, 1998), 31; Christian Advocate, Mar. 10, 1870, 73. 102. New York Observer, Dec. 16, 1869, 303; Independent, Feb. 20, 1870, 4; “Current Events,” Putnam’s Magazine, Jan. 1870, 134. 103. Board of Education v. Minor, 23 Ohio St. 246–248. 104. Ibid., 249, 253. 105. Ibid., 253. 106. Ibid., 248–249. 107. Ibid., 250–251. 108. Christian Advocate, July 17, 1873, 228. 109. 23 Ohio St. 221–238. 110. Ibid.; Christian Statesman, Feb. 28, 1874, 35. 111. Hart v. Sharpsville School Dist., 2 Lanc. L. Rev. 346, 348–353 (Pa. Com. Pl. 1885); Stevenson v. Hanyon, 7 Pa. Dist. 585, 590 (1898).

CHAPTER

9

1. “The School Question,” Catholic World 11 (Apr. 1870): 94; Christian Statesman, Feb. 28, 1874, 35. 2. New York Times, Apr. 15, 1873, 8; Index, Feb. 5, 1874, 66; May 7, 1874, 222. 3. New York Times, June 12, 1872, 5; Independent, Apr. 8, 1875, 14; Index, June 24, 1875, 295; Aug. 12, 1875, 372; New York Tribune, Dec. 15, 1875, 5; Index, Nov. 4, 1875, 517. Despite the ministers’ complaints, the Chicago Board of Education refused to rescind its prior decision to dispense with religious exercises in the public schools. Chicago Tribune, Nov. 14, 1875, 4. 4. Index, Nov. 4, 1875, 517. 5. “Our Public School System,” New York Times, July 25, 1873, 2; “Sectarian Schools,” ibid., Feb. 16, 1872, 4, 5. 6. People ex rel. Roman Catholic Orphan Asylum v. Board of Education, 13 Barb. 400, 411 (N.Y. Sup. 1851); St. Patrick’s Orphan Asylum v. Board of Education, 34 How. Prac. 227, 229 (N.Y. Sup. 1867). 7. Harper’s Weekly, Jan. 1, 1876, as reprinted in the Index, Jan. 13, 1876, 16. See also “Our Established Church,” Putnam’s Magazine, July 1869, 39–52; “Our Established Church,” Catholic World 9 (Aug. 1869): 577–587; “The Unestablished Church,” Putnam’s Magazine, Dec. 1869, 698–711 (all contesting the amount of public funding for Catholic charities); New York Tribune, July 8, 1875, 4; Index, Aug. 5, 1875, 365.

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8. New York Tribune, Oct. 1, 1875, 1; Chicago Tribune, Oct. 1, 1875, 2; Index, Oct. 28, 1875, 513. 9. Index, Oct. 28, 1875, 513; Chicago Tribune, Oct. 1, 1875, 3; New York Tribune, Oct. 1, 1875, 4; Christian Advocate, Oct. 7, 1875, 316; Index, Nov. 4, 1875, 522; “The President’s Speech at Des Moines,” Catholic World (Jan. 1876): 433–443. 10. Philip P. Moran, ed., Ulysses S. Grant, 1822–1885 (Dobbs Ferry, NY: Oceana, 1968), 92; Chicago Tribune, Dec. 8, 1875, 4; Index, Dec. 16, 1875, 593; McAfee, Religion, Race, and Reconstruction, 195; Spear, Religion and the State, 21; Congressional Record, 4:5453–5456, 5580–5595 (1876). 11. Higham, Strangers in the Land, 28–29; James Sundquist, Dynamics of the Party System (Washington, DC: Brookings Institution Press, 1983), 118; William H. Hesseltine, Ulysses S. Grant, Politician (New York: Dodd, Mead, 1935), 390; McAfee, Religion, Race, and Reconstruction, 192–197; New York Tribune, Oct. 1, 1875, 4; Henry Wilson, “New Departure of the Republican Party,” Atlantic Monthly 27 (Jan. 1871): 104–120. 12. “The President’s Speech at Des Moines,” Catholic World (Jan. 1876): 435, 440–441; “The President’s Message,” Catholic World (Feb. 1876): 707; New York Times, Oct. 22, 1875, 1; Index, Oct. 7, 1875, 469; McAfee, Religion, Race, and Reconstruction, 204; Marie Carolyn Klinkhamer, “The Blaine Amendment of 1875: Private Motives for Political Action,” Catholic Historical Review 42 (1955): 15, 21–28. 13. Lyman Atwater, “Civil Government and Religion,” Presbyterian Quarterly and Princeton Review 18 (Apr. 1876): 232; Spear, Religion and the State, 39–41; Index, Nov. 4, 1875, 517. 14. New York Sun, Oct. 22, 1875, quoted in the Index, Nov. 4, 1875, 517. 15. James P. Boyd, Life and Public Services of Hon. James G. Blaine (Philadelphia: Publishers’ Union, 1893), 351–353; Index, Dec. 2, 1875, 570; Congressional Record, 44th Cong., 1st sess., 205 (1875). 16. Zion’s Herald, Dec. 16, 1875, 4; Dec. 23, 1875, 4; Jan. 13, 1876, 1; Christian Advocate, Feb. 10, 1876, 4; Spear, Religion and the State. 17. “Civil Government and Religion,” Presbyterian Quarterly and Princeton Review 18 (Apr. 1876): 195, 232; Index, Jan. 6, 1876, 6; Apr. 27, 1876, 193. 18. “The President’s Message,” Catholic World (Feb. 1876): 707, 711; Nation, Mar. 16, 1876, 173. 19. James G. Blaine, Twenty Years of Congress, 1861–1881 (Norwich, CT: Henry Bill, 1884), 570. Grant’s 1875 message received only a brief comment in this book, and Blaine failed to mention his own call for sectarian-free schools. See Boyd, Life and Public Services (no mention); Theron Clark Crawford, James G. Blaine (Philadelphia: Edgewood, 1893) (no mention); Gail Hamilton, Biography of James G. Blaine (Norwich, CT: Henry Bill, 1895) (no mention); Walter R. Houghton, Early Life and Public Career of Hon. James G. Blaine (Syracuse, NY: Alvard, 1884) (no mention); Willis Fletcher Johnson, Life of James G. Blaine: “The Plumed Knight” (Philadelphia: Atlantic, 1893) (no mention); Henry Davenport Northrop, Life and Public Services of Hon. James G. Blaine (Chicago: National, 1893), 104; Henry J. Ramsdell, Life of Hon. James G. Blaine (Philadelphia: Hubbard, 1888) (no mention); John Clark Ridpath, Life and Work of James G. Blaine (San Francisco: Occidental, 1884) (no mention).

442

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20. Crawford, James G. Blaine, 49; Klinkhamer, “Blaine Amendment,” 29–34; Hamilton, Biography of James G. Blaine, 583–584; Johnson, Life of James G. Blaine, 425; Northrop, Life and Public Services, 21–22. 21. New York Times, Dec. 8, 1875, 6; Dec. 15, 1875, 6; New York Tribune, Dec. 8, 1875, 6; Dec. 15, 1875, 4; Harris, “Division of School Funds,” 171; Catholic World (Jan. 1876): 437. 22. Spear, Religion and the State, 18, 24, 43, 51, 53, 65, 110–131. Spear also disputed that Christianity was part of the common law. Ibid., 187–202. 23. Harris, “Division of School Funds,” 173, 177. 24. Nashville Daily American, Aug. 5, 1876, 2, quoted in McAfee, Religion, Race, and Reconstruction, 204, 4–5, 15–21, 105–124; Spear, Religion and the State, 21. See also Atwater, “Civil Government and Religion,” 195. 25. See Hamburger, Separation of Church and State, 323 (acknowledging the significance of the federalism issue). 26. Congressional Record, 4:5189, 5191 (Aug. 4, 1876). 27. No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall be required as a qualification to any office or public trust under any State. No public property and no public revenue, nor any loan of credit by or under the authority of the United States, or any State, Territory, District, or municipal corporation, shall be appropriated to or made or used for the support of any school, educational or other institution under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creeds or tenets shall be taught. And no such particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization, or denomination or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair the rights of property already vested. (Ibid., Aug. 7, 1876, 5453) See “An Open Letter,” Christian Statesman, Aug. 12, 1876, reprinted in the Index, Aug. 31, 1876, 411, 414; Index, Aug. 24, 1876, 402. 28. Congressional Record, 4:5455 (Aug. 7, 1876). Beyond his specific concern over usurpation of states’ authority over education, Randolph also believed that the amendment threatened states’ control over general expenditures by imposing an obligation on the states to establish schools. 29. See comments by Democratic senators Kernan, ibid., 5580; Stevenson, ibid., 5589; and Eaton, ibid., 5592; and Representative Hoar during the House debate: “Nobody wants Congress [to] undertake to legislate in regard to the school system of the States.” Ibid., 5190. See also responses by Republican senators Christiancy and Morton, ibid., 5583–5584 and 5594. 30. Catholic World (Jan. 1876): 434–435; Boyd, Life and Public Services, 352–353. Senator Frelinghuysen claimed that the amendment was proposed “because this vexed

NOTES TO PAGES

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443

question was to be removed from the arena of party politics.” Congressional Record, 4:5561. 31. Congressional Record, 4:5589, 5590 (Bogy), 5587–5588 (Edmunds). Senator Morton: “[The amendment] simply places religious liberty in this country and education upon impregnable grounds. It is no blow upon the Catholic Church. . . . It protects catholicism as it protects protestantism.” Ibid., 5594. 32. Ibid., 5456. 33. Ibid., 5562. Francis Kernan, the Catholic Democratic senator from New York, replied that decisions about Bible reading should be left to local officials, stating that it was an insult to suggest “that there was a danger that they would begin now to establish a State religion, or begin to prohibit its exercise, or make religious belief a test or qualification for holding office.” Ibid., 5581. 34. See ibid., 5581 (Kernan), 5583 (Whyte), 5584–5585 (Morton). Democrat Kernan objected that this provision was counter to the design of the Constitution and would give “the Federal Government supreme power,” transferring authority for the enforcement of civil rights to federal courts. Ibid., 5581. 35. Ibid., 5585. 36. Ibid. 37. Ibid., 5595. 38. “The Defeated Constitutional Amendment,” Index, Aug. 24, 1876, 402. 39. See Frank R. Kemerer, “State Constitutions and School Vouchers,” Education Law Reporter 120 (Oct. 1997): 1; Steven K. Green, “The Insignificance of the Blaine Amendment,” Brigham Young University Law Review (2008): 295–333. 40. Green, “Insignificance of the Blaine Amendment.” 41. St. Patrick’s Orphan Asylum v. Board of Education, 34 How. Prac. 227 (N.Y. Sup. 1867); Jenkins v. Inhabitants of Andover, 103 Mass. 94 (1869); People v. McAdams, 82 Ill. 356 (1876); St. Mary’s Industrial School v. Brown, 45 Md. 310 (1876); Otken v. Lankin, 56 Miss. 758 (1879); Nevada v. Hallock, 16 Nev. 373, 379, 387 (1882); Millard v. Board of Education, 10 N.E. 669 (Ill. 1887); Cook County v. Chicago Industrial School for Girls, 18 N.E. 183 (Ill. 1888); Synod of South Dakota v. State, 50 N.W. 632 (S.D. 1891); Atchison, Topeka and Santa Fe Railway v. City of Atchison, 28 P. 1000 (Kans. 1892); Sargent v. Board of Education, 69 N.E. 722 (N.Y. 1904). 42. Jenkins v. Inhabitants of Andover, 103 Mass. 94 (1869); St. Mary’s Industrial School v. Brown, 45 Md. 310 (1876). 43. St. Patrick’s Orphan Asylum v. Board of Education, 34 How. Prac. 227 (N.Y. Sup. 1867); New York Constitution of 1894, Art. 9, sec. 4; Sargent v. Board of Education, 69 N.E. 722, 723 (N.Y. 1904); Pratt, Religion, Politics, and Diversity, 252–256. 44. Nevada v. Hallock, 16 Nev. 373, 379, 387 (1882). See also Cook County v. Chicago Industrial School for Girls, 18 N.E. 183 (Ill. 1888). 45. Stevenson v. Hanyon, 4 Pa. Dist. Rep. 395, 396 (Pa. Com. Pl. 1895). 46. Stevenson v. Hanyon, 7 Pa. Dist. Rep. 585, *6 (Pa. Com. Pl. 1898). 47. New York Tribune, Dec. 3, 1869, 5; Spear, Religion and the State, 77–87. 48. McCluskey, Public Schools and Moral Education, 145–153; Harris, “Division of School Funds,” 180; Harris, “The Separation of the Church from the Tax-Supported

444

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School,” Education Review 26 (Oct. 1903): 224, 226. “The principle of religious instruction is authority; that of secular instruction is demonstration and verification. It is obvious that two principles should not be brought into the same school, but separated as widely as possible.” Ibid., 224. 49. B. J. McQuaid, “Religion in Schools,” North American Review 132 (Apr. 1881): 336, 332. 50. Spear, Religion and the State, 65, 60; Harris, “Moral Education,” American Journal of Education 8 (Nov. 1875): 5; Harris, “Our Public Schools: Can Morality Be Taught without Sectarianism?” Journal of Education 29 (Feb. 14, 1889): 1; McCluskey, Public Schools and Moral Education, 160–161. 51. Proceedings of State Teachers’ Association (1884), 39–40, reprinted in David Tyack, “The Kingdom of God and the Common School,” Harvard Educational Review 36 (1966): 447, 465; Lyman Abbott, “Religious Teaching in the Public Schools,” Century 49 (Apr. 1895): 943, 946–947. 52. “Respecting Establishments of Religion and Free Public Schools,” in In Defense of the Public Schools (Philadelphia: Aldine, 1888), 95. 53. Congressional Record, 13:4821–4824 (June 13, 1882); Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (Chapel Hill: University of North Carolina Press, 2002), 39–42; John Whitney Evans, “Catholics and the Blair Education Bill,” Catholic Historical Review 46 (Oct. 1960): 273–298. 54. See “Religion and Schools,” in Notes of Hearings before the Committee on Education and Labor, U.S. Senate, on Joint Resolution S.R. 86, 50th Cong., 1st Sess. (Feb. 15, 1889), 3. 55. Ibid., 10–12. 56. Ibid., 12. 57. Ibid., 21–22. 58. Ibid., 8–9. 59. See Evans, “Catholics and the Blair Education Bill,” 273–298. 60. See ibid.; Lyman Atwater, “Morality, Religion and Education in the State,” Princeton Review (1878): 395, 417–420. 61. Alonzo T. Jones, Civil Government and Religion; or, Christianity and the American Constitution (Chicago: American Sentinel, 1889), chap. 4; Eric Syme, A History of SDA Church-State Relations in the United States (Mountain View, CA: Pacific, 1973), chap. 3; American Sentinel, Mar. 3–20, 1890, 88, 94, 110–111. 62. J. Dashiell Stoops and Herman H. Horne, “The Use of the Bible in Public Schools: A Symposium,” Biblical World 27 (Jan. 1906): 48–62, 52–53, 55; O. A. Kingsbury, “The Roman Catholics and the Public Schools,” New Englander and Yale Review (Sept. 1885): 620, 628. 63. “The Bible and the Common Schools,” Biblical World 20 (Oct. 1902): 243–247. 64. William T. Harris, Report of the Commissioner of Education for the Year 1894–1895 (Washington, DC: Government Printing Office, 1896), 2:1656. 65. McCormick v. Burt, 95 Ill. 263, 265 (1880); Moore v. Monroe, 20 N.W. 475 (Iowa 1884); Hart v. School Dist. of Sharpsville, 2 Lanc. 346 (Pa. Com. Pl. 1885);

NOTES TO PAGES

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Stevenson v. Hanyon, 7 Pa. Dist. 585 (1898); Pfeiffer v. Board of Education, 77 N.W. 250 (Mich. 1898). See also Nessle v. Hum, 1 Ohio N.P. 140, 142 (1894) (reading Minor as vesting discretion in school boards). In Ferriter v. Tyler, 48 Vt. 444 (1876), the Vermont Supreme Court indirectly affirmed the nonsectarian character of its schools in a decision denying a right of Catholic children to be dismissed to attend religious events. 66. Pfeiffer, 77 N.W. 250–251; Moore, 20 N.W. 475–476. 67. Hart, 2 Lanc. L. Rev. 351–355. 68. Ibid., 349, 351–352. 69. Stevenson, 7 Pa. Dist. 585, 589–591. See Curran v. White, 22 Pa. Cty Rep. 201 (1898) (finding Bible reading without note or comment to be nonsectarian). 70. Moore, 20 N.W. 475. 71. State ex rel. Weiss v. Dist. Board of School Dist. No. 8, 44 N.W. 967 (Wis. 1890). 72. Ibid., 973. 73. Ibid., 972–973, 975. 74. Ibid., 975. See Engel v. Vitale, 370 U.S. 421 (1962); Abington Township School Dist. v. Schempp, 374 U.S. 203, 223 (1963); Lee v. Weisman, 505 U.S. 577 (1992). 75. Weiss, 44 N.W. 973. 76. Ibid., 977–978 (Cassoday, J., concurring). 77. New York Times, Mar. 20, 1890, 4. 78. Ibid., Apr. 8, 1890, 8; May 27, 1890, 5. 79. Ibid., Apr. 9, 1890, 4; Apr. 16, 1890, 9. 80. Ibid., Apr. 20, 1890, 4. 81. Nessle v. Hum, 1 Ohio N.P. 140 (Com. Pl. 1894). 82. Pfeiffer v. Board of Education, 77 N.W. 250 (Mich. 1898). 83. Ibid., 252. 84. Ibid., 259–261 (Moore, J., dissenting). 85. State ex rel. Freeman v. Scheve, 91 N.W. 846, 847 (Neb. 1902). 86. State ex rel. Freeman v. Scheve, 93 N.W. 169 (Neb. 1903). See Note and Comment, Michigan Law Review 1 (Apr. 1903): 586–588. 87. Freeman v. Scheve, 93 N.W. 169, 170. 88. “Reading the Bible in Common Schools,” Yale Law Journal 12 (Dec. 1902): 102–103. 89. Billard v. Board of Education, 76 P. 422, 433 (Kans. 1904); Hackett v. Brooksville Graded School Dist., 87 S.W. 792, 794 (Ky. 1905). 90. Church v. Bullock, 109 S.W. 115, 118 (Tex. 1908). 91. People ex rel. Ring v. Board of Education, 92 N.E. 251, 254–256 (Ill. 1910). 92. Ibid., 255–256. 93. Ibid., 256. 94. Ibid., 265–266 (Hand, J., dissenting). 95. Ibid., 254, 256. 96. Comment, “Reading [the] Bible in Public Schools,” Harvard Law Review 24 (Dec. 1910): 160.

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97. Ring, 92 N.E. 255. 98. “The Bible and the Common Schools,” Biblical World 20 (Oct. 1902): 243; “An Extraordinary Judicial Decision,” Outlook (May 25, 1912): 154–158; Edwin C. Goddard, “The Law in the United States in Its Relation to Religion,” Michigan Law Review 10 (1912): 161–177. 99. Stephen G. Rich, “What Portions of Scripture Shall We Use in School?” Education 43 (Sept. 1922): 93; “Religious Instruction and Public Education,” School and Society 3 (Apr. 18, 1916): 540; Jerome K. Jackson and Constance F. Malmberg, Religion and the State (Garden City, NY: Doubleday, Doran, 1928), 1–14. 100. Washington Gladden, “Religion and the Schools,” Atlantic Monthly 115 (Jan. 1915): 61, 63. 101. Brown, Secularization of American Education, 1, 3.

CHAPTER

10

1. Banner, “When Christianity Was Part of the Common Law,” 60–62; People v. Ruggles, 8 Johns. 290 (N.Y. 1811); Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); Commonwealth v. Wolf, 3 Serg. & Rawle 48 (Pa. 1817); State v. Chandler, 2 Harr. 553 (Del. 1837); City Council of Charleston v. Benjamin, 2 Strob. 508 (S.C. 1846). 2. Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 156 (N.Y. Sup. 1850); McGatrick v. Wason, 4 Ohio St. 566 (1855); Sparhawk v. Union Pacific Passenger Railway Co., 45 Pa. 401 (1867); Joseph P. Bradley, “Esoteric Thoughts on Religion and Religionism,” in Miscellaneous Writings of the Late Hon. Joseph P. Bradley, ed. Charles Bradley (Newark, NJ: L. J. Hardham, 1902), 423–424. Today, Bradley is known for his statement that women are unqualified to practice law: “family organization, which is founded in the divine ordinance, as well as the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. . . . It is the law of the Creator.” Bradwell v. Illinois, 83 U.S. 130, 141 (1873) (Bradley, J., concurring). 3. Benjamin J. McQuaid, “Religion in Schools,” North American Review 132 (Apr. 1881): 332–344; Lyman Abbott, “Religious Teaching in the Public Schools,” Century 49 (Apr. 1895): 943–948; “The Bible and the Common Schools,” Biblical World 20 (Oct. 1902): 243–247; Brown, Secularization of American Education. 4. Spear, Religion and the State, 51. 5. Josiah Strong, Our Country: Its Possible Future and Its Present Crisis (1885; reprint, New York: Baker and Taylor, 1891), 184–187. 6. Paul Carter, The Spiritual Crisis of the Gilded Age (DeKalb: Northern Illinois University Press, 1971); Higham, Strangers in the Land, 35–45, 52–67; James H. Moorhead, American Apocalypse: Yankee Protestants and the Civil War, 1860–1869 (New Haven, CT: Yale University Press, 1978), 232, 236–244; T. Jackson Lears, No Place of Grace: Antimodernism and the Transformation of American Culture, 1880–1920 (New York: Pantheon, 1981), 32–47; Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill and Wang, 1967), 12; Gary Scott Smith, The Seeds of Secularization: Calvinism, Culture and Pluralism in America, 1870–1915 (Grand Rapids, MI: Christian University Press, 1985), 2.

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7. Handy, Undermined Establishment, 7–29; Lord Bryce, The American Commonwealth, 2nd ed. (London: Macmillan, 1891), 2:576–577. 8. Cushing Strout, The New Heavens and New Earth (New York: Harper & Row, 1974), 211–212; Strong, Our Country, 184–187. 9. Charles Hodge, “What Is Darwinism?” in Critical Issues in American Religious History, ed. Robert R. Mathisen (Waco, TX: Baylor University Press, 2006), 376–381; Carter, Spiritual Crisis, 23–42; James Turner, Without God, Without Creed: The Origins of Unbelief in America (Baltimore: The Johns Hopkins University Press, 1985), 171–187. 10. Lears, No Place of Grace, 42; “Church Attendance,” North American Review 137 (1883): 76. 11. Mason W. Pressly, “The ‘Personal Liberty’ Movement,” Presbyterian Quarterly 1 (Jan. 1888): 544. See, generally, Foster, Moral Reconstruction. 12. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). 13. Bradley, “Religious Forms,” in Bradley, Miscellaneous Writings, 404. 14. Background on the NRA is contained in the following: David McAllister, “Brief History of the National Reform Movement,” in National Reform Documents (Allegheny, PA: National Reform Association, 1900); Borden, Jews, Turks, and Infidels, 58–74; Borden, “The Christian Amendment,” Civil War History 25 (1979): 156–167; Foster, Moral Reconstruction; Smith, Seeds of Secularization, 58–68. 15. Horace Bushnell, Reverses Needed: A Discourse Delivered on the Sunday after the Disaster of Bull Run (Hartford, CT: L. E. Hunt, 1861), 25–26. 16. Independent, Feb. 26, 1863, 3; McAllister, “Brief History,” 5–6; David McAllister, Christian Civil Government in America (Pittsburgh, PA: National Reform Association, 1927), 20–23; Borden, Jews, Turks, and Infidels, 62; Borden, “The Christian Amendment,” 156–167. 17. Borden, Jews, Turks, and Infidels, 63; Pittsburgh Dispatch, Jan. 28, 1864; Independent, Feb. 4, 1864. See Wylie, Two Sons of Oil. 18. Index, Oct. 28, 1871, 338; H. K. Carroll, The Religious Forces of the United States (New York: Scribner’s, 1912), 310; Smith, Seeds of Secularization, 15–16, 53–73; Morris, Christian Life and Character, 765–767; Minutes of the General Assembly of the Presbyterian Church in the U.S.A. (Philadelphia: Presbyterian Board of Pub., 1864), 315; Christian Advocate and Journal, June 2, 1864, 173. 19. According to the Independent, the amendment’s supporters would have been satisfied if “in one pregnant sentence only, [the framers] had traced back the doctrine of human rights to [the Bible] and recognized civil government as the ordinance of God.” Independent, Mar. 9, 1865, 3. 20. New York Times, Feb. 2, 1864, 4; Independent, Mar. 17, 1864, 1; Feb. 4, 1864, 4; McAllister, Christian Civil Government, 24; John Alexander, History of the National Reform Movement (Pittsburgh, PA: Shaw, 1893), 24; Borden, Jews, Turks, and Infidels, 68–69. 21. Edward L. Pierce, ed., Memoir and Letters of Charles Sumner, 1860–1874 (Boston: Roberts, 1898), 4:174–175; Borden, Jews, Turks, and Infidels, 67–68. 22. Bradley to Rev. David McAlister, Dec. 7, 1871, in Bradley, Miscellaneous Writings, 357–358; Horace Bushnell, “Our Obligations to the Dead” (1865), in The

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American Evangelicals, 1800–1900: An Anthology, ed. William G. McLoughlin (Gloucester, MA: Peter Smith, 1976), 148; Paul C. Nagel, This Sacred Trust: American Nationality 1798–1898 (New York: Oxford University Press, 1971), 130; Independent, Mar. 9, 1865, 3. 23. Congressional Globe, 38th Cong., 2nd sess. (Mar. 2, 1865), 1272; New York Tribune, Mar. 3, 1865, 4. 24. Index, Oct. 28, 1871, 339; McAllister, Christian Civil Government, 26, 51–55; Constitution and Addresses of the National Association for the Amendment of the Constitution of the United States (Philadelphia: Jas. B. Rodgers, 1864), 11–12; Christian Statesman, Oct. 1, 1867, 18; Feb. 28, 1874, 35. 25. Sparhawk v. Union Pacific Passenger Railway Co., 54 Pa. 401 (1867). 26. Charles Fairman, Mr. Justice Miller and the Supreme Court, 1862–1890 (Cambridge, MA: Harvard University Press, 1939), 167–168; Jon C. Teaford, “Toward a Christian Nation: Religion, Law and Justice Strong,” Journal of Presbyterian History (Winter 1976): 424–425; Foster, Moral Reconstruction, 51. 27. Address attributed to William Strong, in Constitution and Addresses of the National Association, 9–10. 28. Ibid., 8–9; McAllister, Christian Civil Government. 29. Congressional Globe, 40th Cong., 3rd sess., 974. 30. New York Times, Feb. 13, 1869, 4. 31. Ibid., May 29, 1869, 1; Index, Jan. 7, 1871, 1; Jan. 21, 1871, 20; Jan. 6, 1872, 5; Jan. 4, 1873, 1; Congressional Record, 43rd Cong., 1st sess., 432; Boston Globe, Jan. 8, 1874, reprinted in the Index, Jan. 15, 1874, 30. 32. House Miscellaneous Reports, 1623, no. 143, 43rd Cong., 1st sess. (1873–1874). 33. Christian Statesman, Feb. 28, 1874, 197. 34. New York Times, Feb. 5, 1874, 5; Pittsburgh Dispatch, Feb. 6, 1874, reprinted in the Index, Feb. 26, 1874, 99–100; Proceedings of the National Convention to Secure the Religious Amendment of the Constitution of the United States (Philadelphia: Christian Statesman Association, 1874), 27, 33, 75. 35. Independent, Feb. 19, 1874, 4; Feb. 26, 1874, 18; “An Open Letter,” Christian Statesman, Aug. 12, 1876, reprinted in the Index, Aug. 31, 1876, 411, 414; Index, Aug. 24, 1876, 402. 36. Foster, Moral Reconstruction, 27–130. 37. Ibid., 36–68; Handy, A Christian America, 69–81. 38. Orma Linford, “The Mormons and the Law: The Polygamy Cases, Part I,” Utah Law Review 9 (1964): 308–370; Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002), 119–181; Foster, Moral Reconstruction, 59–68; Congressional Record, 17:507 (1886). 39. Davis v. Beason, 133 U.S. 333, 343 (1890). 40. Zion’s Herald, Oct. 14, 1875, 323; New York Tribune, Oct. 28, 1875, 5; Index, Feb. 24, 1876, 85; Christian Union, May 10, 1876, 366; Christian Advocate, June 1, 1876, 172. 41. Christian Advocate, June 1, 1876, 172; Index, Feb. 10, 1876, 61. 42. Philadelphia Item, July 7, 1876, reprinted in the Index, July 20, 1876, 339–340; Index, July 13, 1876, 331.

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43. Pressly, “‘Personal Liberty’ Movement,” 543. 44. New York Times, May 17, 1880, 4. 45. See In re Rupp, 33 App. Div. 468, 470–472 (N.Y. 1898). 46. Lindenmuller v. the People, 33 Barb. 548, 550 (N.Y. Sup. 1861). 47. Atwater, “Civil Government and Religion,” 195, 201; statement of Joseph Cook reprinted in Jones, Civil Government and Religion, 73. 48. “Church Attendance,” North American Review 137 (1883): 76; W. S. Lilly, “The Present Outlook for Christianity,” Forum 2 (Dec. 1886): 318. 49. The Right of the People to the Sunday Rest (New York: New York Sabbath Committee, 1880), 5–7, 19; New York Times, May 17, 1880, 5. 50. Syme, History of SDA Church-State Relations, 24–31; Pressly, “‘Personal Liberty’ Movement,” 544; A. H. Lewis, A Critical History of Sunday Legislation from 321 to 1888 A.D. (New York: Appleton, 1888), 1; Andrew J. King, “Sunday Law in the Nineteenth Century,” Albany Law Review 64 (2000): 675–772. 51. See American Sentinel, Mar. 1886, 24; July 1886, 56; Alonzo T. Jones, The Two Republics; or, Rome and the United States of America (Battle Creek, MI: Review and Herald, 1891), 786–798, 877–895; Blakely, American State Papers, 654–664, 668–675. 52. Scoles v. State, 47 Ark. 476 (1886); Parker v. State, 16 Lea. 476, 480 (Tenn. 1886). 53. Mayor v. Linck, 12 Lea. 499, 518 (Tenn. 1883); see also Salter v. Smith, 55 Ga. 244 (1875). 54. City of St. Joseph v. Elliott, 47 Mo. App. 418, 422–425 (1892). 55. In re King, 46 Fed. 905, 906 (W.D. Tenn. 1891); American Sentinel, Mar. 27, 1890, 102–103; July 10, 1890, 214; Aug. 14, 1890, 254. The procedural history and excerpts of the case are in Alonzo T. Jones, “Due Process of Law” and Divine Right of Dissent (Battle Creek, MI: National Religious Liberty Association, 1892), 2–8. 56. In re King, 46 Fed. 911–913. 57. Ibid., 912–915. 58. Judefind v. State, 28 A. 405, 406–407 (Md. 1894). 59. Levering v. Williams, 106 A. 176 (Md. 1919). 60. State v. Ludwig, 21 Minn. 202, 205 (1875); Brimhall v. Van Campen, 8 Minn. 13 (1862). See also People v. Dennin, 35 Hun. 327 (N.Y. App. Div. 1885); People v. Bellet, 57 N.W. 1094 (Mich. 1894); Eden v. the People, 161 Ill. 296 (1896); State v. Powell, 50 N.E. 900 (Ohio 1898). 61. Syme, History of SDA Church-State Relations, 44–45. 62. New York Times, Dec. 6, 1888, 2; Jones, The Two Republics, 820–826; Jones, Civil Government and Religion, 65–77; Syme, History of SDA Church-State Relations, 29–31. 63. “Senate Rest Bill,” in Notes of a Hearing before the Committee on Education and Labor, United States Senate, Thursday, December 13, 1888, 50th Cong., 2nd sess., Misc. Doc. 43; Foster, Moral Reconstruction, 96–101. 64. “Senate Rest Bill,” 73–101; The National Sunday Law: Argument of Alonzo T. Jones before the United States Senate Committee on Education and Labor, Dec. 13, 1888 (Oakland, CA: Pacific, 1889); Jones, Civil Government and Religion, 43–77; Jones, “Due Process of Law,” 59–63; Foster, Moral Reconstruction, 96–101.

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65. New York Times, May 24, 1882, 3; Ex rel. Reynolds (N.J. Ct. Com. Pl. 1887), reprinted in Lawson, American State Trials, 16:795–857; “On Trial for Blasphemy,” New York Times, May 20, 1887, 8. 66. Albany Law Journal 35 (June 4, 1887): 441; Commonwealth v. Moore, reprinted in Theodore Schroeder, Constitutional Free Speech Defined and Defended (New York: Free Speech League, 1919), 60–64. 67. Atwater, “Civil Government and Religion,” Presbyterian Quarterly and Princeton Review 18 (Apr. 1876): 195, 202–205, 226–227, 232. 68. Ibid., 224–225. 69. George Shea, The Nature and Form of the American Government Founded in the Christian Religion (Boston: Houghton, Mifflin, 1883), 16, 24, 35, 36. 70. P. Emory Aldrich, “The Christian Religion and the Common Law,” Proceedings of the American Antiquarian Society (Worcester, MA: American Antiquarian Society, 1890), 6:18–37. 71. Philip Schaff, Church and State in the United States; or, The American Ideal of Religious Liberty (New York: Putnam’s, 1888); John F. Wilson, “Civil Authority and Religious Freedom in America: Philip Schaff on the United States as a Christian Nation,” in A Century of Church History: The Legacy of Philip Schaff, ed. Henry W. Bowden (Carbondale: Southern Illinois Press, 1988), 148–167; Handy, Undermined Establishment, 20–22. 72. Schaff, Church and State in the United States, 10, 22–23, 43–44, 53. 73. Ibid., 38, 42–43, 54, 58–62, 69, 72–73. 74. Ibid., 43, 62. 75. Isaac A. Cornelison, The Relation of Religion to Civil Government in the United States of America: A State without a Church, but Not without a Religion (New York: Putnam’s, 1895), 228.

CHAPTER

11

1. Henry Campbell Black, Handbook of American Constitutional Law (St. Paul, MN: West, 1895); Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States (St Louis, MO: Thomas Law Book, 1886); Joel Prentiss Bishop, Commentaries on the Civil Law (Boston: Little, Brown, 1882); Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union, 4th ed. (Boston: Little, Brown, 1878). See, generally, Clyde E. Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law (Berkeley: University of California Press, 1954); Hall, Magic Mirror, 222. 2. Cooley, Treatise on the Constitutional Limitations, 584n1, 594–595. 3. Ibid., 587–588. 4. Ibid., 588–589. 5. Ibid., 588. 6. Allen v. Duffy, 4 N.W. 427, 431, 433 (Mich. 1880).

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7. Cornelison, Relation of Religion to Civil Government, 296–299; David McAllister, The National Reform Movement: Its History and Principles (Philadelphia: Aldine, 1890), 146–147. 8. Tiedeman, Treatise on the Limitations of Police Power, 160. 9. Ibid., 171. 10. Ibid., 167–169, 177–188. 11. Board of Education v. Minor, 23 Ohio St. 211 (1873); Swan v. Swan, 21 Fed. 299 (C.C.E.D. Ark. 1884); State ex rel. Weiss v. Dist. Board of School Dist., 44 N.W. 967 (Wis. 1890); Pfeiffer v. Board of Education, 77 N.W. 250 (Mich. 1898); Tiedeman, Treatise on the Limitations of Police Power, 159–188. 12. Rev. M. B. Anderson, “Relations of Christianity to the Common Law,” Albany Law Review 20 (1879): 265–268, 285–288. 13. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). 14. See Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting); Lynch v. Donnelly, 465 U.S. 668, 717–718 (1984) (Brennan, J., dissenting); Borden, Jews, Turks, and Infidels, 125–127. 15. Steven K. Green, “Justice David Josiah Brewer and the ‘Christian Nation’ Maxim,” Albany Law Review 63 (1999): 427–476. Most likely, few members of Congress considered that the immigration law, which prohibited the importation of foreigners under contracts of employment, would apply to professionals, especially to clergymen. According to the lower court: It was, no doubt, primarily the object of the [immigration law] to prohibit the introduction of assisted immigrants, brought here under contracts previously made by corporations and capitalists to prepay their passage and obtain their services at low wages for limited periods of time . . . . Except from the language of the statute there is no reason to suppose a contract like the present to be within the evils which the law was designed to suppress; and, indeed, it would not be indulging a violent supposition to assume that no legislative body in this country would have advisedly enacted a law framed so as to cover a case like the present. (United States v. Church of the Holy Trinity, 36 F. 303, 304 [C.C.S.D.N.Y. 1888]). 16. 23 Statute at Large 332, chap. 164 (Feb. 26, 1885); Holy Trinity, 36 F. 303. See Linda Przybyszewski, “Judicial Conservatism and Protestant Faith: The Case of Justice David J. Brewer,” Journal of American History 91 (2004): 1–2. 17. 143 U.S. 472. “The common understanding of the terms ‘laborer’ and ‘laborers’ does not include preaching and preachers, and it is to be assumed that words and phrases are used in their ordinary meaning.” Ibid., 463. 18. “[N]o purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true [that] from the discovery of this continent to the present hour, there is a single voice making this affirmation.” Ibid., 465. 19. Ibid., 465–471.

452

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20. Ibid., 465–470, 471. The opinion does note that the restriction would be equally invalid against a contract to employ a Catholic priest or a Jewish rabbi. Ibid., 472. 21. Holmes to Frederick Pollock, Apr. 1, 1910, in Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, ed. Mark DeWolf Howe (Cambridge, MA: Harvard University Press, 1961), 1:160. See Michael J. Broadhead, David J. Brewer: The Life of a Supreme Court Justice, 1837–1910 (Carbondale: Southern Illinois University Press, 1994); D. Stanley Eitzen, “David J. Brewer, 1837–1910: A Kansan on the United States Supreme Court,” Emporia State Research Studies 12 (1964): 1–11; Francis Bergan, “Mr. Justice Brewer: Perspective of a Century,” Albany Law Review 25 (1961): 191; Linda Przybyszewski, “The Religion of a Jurist: Justice David J. Brewer and the Christian Nation,” Journal of Supreme Court History 25 (2000): 228–242. 22. Brewer, American Citizenship (New York: Scribner’s, 1902), 26; Brewer, “Organized Wealth and the Judiciary,” Chicago Legal News 37 (1904): 16. 23. Brewer, “Women in the Professions,” Delineator (May 1906): 877; Brewer, “The Spanish War: A Prophecy or an Exception: An Address before the Liberal Club of Buffalo, New York” (Feb. 16, 1899), Brewer Family Papers, Yale University, Box 3:143; Quock Ting v. United States, 140 U.S. 417 (1891); Ekiu v. United States, 142 U.S. 651 (1892); Fong Yue Ting v. United States, 149 U.S. 698 (1893); Chin Ying v. United States, 186 U.S. 202 (1902); Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903); United States v. Sing Tuck, 194 U.S. 161 (1904); United States v. Ju Toy, 198 U.S. 235 (1905). See Owen M. Fiss, “David J. Brewer: The Judge as Missionary,” in The Fields and the Law (San Francisco: U.S. District Court for the Northern District of California Historical Society, 1986), 53–71. 24. Brewer prayed for a day when “[w]e shall not be wrangling about definitions of the Trinity . . . . We shall cease striving to solve the mysteries of the Incarnation, defining the limits of the human and the divine in the one being.” Brewer, The Twentieth Century from Another Viewpoint (New York: Revell, 1899), 35–36, 38, 39, 54. 25. Brewer, “Address to the Association of Agents of the Northwestern Mutual Life Insurance Company” (July 16, 1908), 3, Brewer Family Papers, 5:186. 26. Brewer, The United States a Christian Nation (Philadelphia: John C. Winston, 1905), 49. 27. Brewer, “Jubilee Anniversary: An Address Delivered at the 50th Annual Meeting of the A.M.A.” (Oct. 21, 1896), Brewer Family Papers, 3:137; Brewer, “The Spanish War: A Prophecy or an Exception,” 21. 28. Brewer, United States a Christian Nation, 53; Brewer, American Citizenship, 20. 29. 143 U.S. 465. 30. Brewer, United States a Christian Nation, 3–31; Brewer, American Citizenship, 21–22; Brewer, “Address to First Congregational Church” (Dec. 15, 1905), 5, Brewer Family Papers, 4:167. 31. Brewer, “A Plea for the Bible,” Ram’s Horn, Sept. 10, 1904, n.p. 32. “It is wonderfully true that all through the Official and organic life of the nation, from the first to the present time, has run the thought of the Christian

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religion.” “Address to First Congregational Church,” 5; Brewer, United States a Christian Nation, 53, 31–32, 39–40; Brewer, American Citizenship, 20–21. 33. Brewer, “Why Do I Believe in Foreign Missions?” American Board of Commissioners for Foreign Missions 8 (Apr. 1905): 7; Brewer, “The Nations [sic] Safeguard,” Proceedings of the New York State Bar Association, 16th Annual Meeting (1893), 38, Brewer Family Papers, 3:132; Brewer, American Citizenship, 22–23; Brewer, United States a Christian Nation, 84–85. Christian cultures were superior because they stood for “purity in the home,” “business honesty and integrity,” “liberty and the rights of man,” “education,” “the great charities and benevolences,” “peace,” and “temperance.” Ibid., 58–64. 34. Brewer, United States a Christian Nation, 75; Brewer, American Citizenship, 48–50. That a nation, as such, has a character, and is known by it, is obvious . . . . A nation may be regarded in a twofold aspect. In the one it is to be viewed as standing over against the individual, an artificial entity separate and distinct from all its citizens . . . . in the other, and a perfectly consistent aspect, it is to be regarded as an aggregation of individuals. In the one it is a unit; in the other a collection of units. In either case the moral element is the bright coloring of the picture. (Ibid., 39, 41–42) 35. Brewer, “Why Do I Believe in Foreign Missions?” 7; Brewer, American Citizenship, 42; Brewer, “Jubilee Anniversary,” 7–9; Brewer, United States a Christian Nation, 68–70; Brewer, “The Spanish War: A Prophecy or an Exception.” See Charles Henry Butler, “Services of Justice Fuller and Brewer in Questions of International Law,” American Journal of International Law 4 (1910): 39. 36. Brewer, “The Mission of the U.S.A. in the Cause of Peace,” address before the New Jersey State Bar Association (June 12, 1909), 6, Brewer Family Papers, 5:188; Brewer, United States a Christian Nation, 12–13, 82; “Northwestern Mutual Life Insurance Address,” 6; Brewer, “The Spanish War: A Prophecy or an Exception,” 32. 37. Brewer, “The Spanish War: A Prophecy or an Exception,” 32. 38. Brewer, United States a Christian Nation, 78, 81; “Address to the Y.M.C.A.” (Oct. 16, 1904), 6, Brewer Family Papers, 4:157. 39. Brewer, American Citizenship, 26; Brewer, “The Nation’s Anchor,” Chicago Tribune, Feb. 13, 1898, 3. 40. Brewer, “Mission of the U.S.A. in the Cause of Peace”; Brewer, United States a Christian Nation, 82. 41. Brewer, American Citizenship, 22; Brewer, United States a Christian Nation, 54, 32, 78, 59. 42. The NRA’s manual for political activism, Christian Civil Government, opposed any union of church and state. McAllister, Christian Civil Government, 21. 43. Commissioners [of ] Wyandotte County v. First Presbyterian Church of Wyandotte, 1 P. 109, 112 (Kans. 1883). 44. Ibid. 45. Brewer, United States a Christian Nation, 55–56, 61.

454

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46. Brewer, American Citizenship, 21–22. 47. Brewer, United States a Christian Nation, 32. 48. Ibid., 54. While Brewer supported Sunday laws to prevent the disruption of religious practice, he recognized that religious “freedom implies not merely freedom of those who would keep the day sacred, but also the freedom of those who do not so regard it.” Ibid., 56. 49. Brewer, American Citizenship, 22. 50. Brewer, Twentieth Century, 50. Do not misunderstand me as decrying all legislation, as intimating that the state must stand indifferent to matters of vice and has no duty of protection against its temptations . . . . Society may by statute and ordinance guard itself against the temptations and evil influences which fill these abodes of vice. But that is a minor matter. No man is reformed by a statute—made good by an ordinance. The Master taught a more excellent way. (Ibid., 50–51) 51. “Address at the Dedication of the New Building at the Normal School,” Emporia Gazette, June 25, 1880, n.p.; Scrapbook II, 29, Brewer Family Papers. 52. Brewer, “The Pew to the Pulpit,” 9, Brewer Family Papers, 3:138. 53. Brewer, Twentieth Century, 51. 54. Hennington v. Georgia, 163 U.S. 299, 304–308 (1895); Petit v. Minnesota, 177 U.S. 164 (1900); Bradfield v. Roberts, 175 U.S. 291, 298 (1899). 55. Washington Post, Mar. 1, 1892, 2; New York Times, Mar. 1, 1892, 9. 56. This decision is vital to the Sunday question in all its aspects, and places that question among the most important issues now before the American people . . . . And this important decision rests upon the fundamental principle that religion is imbedded in the organic structure of the American Government—a religion that recognizes, and is bound to maintain, Sunday as a day of rest and worship. (Pearl of Days, May 7, 1892, reprinted in American Sentinel, May 19, 1892, 155) Also see Christian Statesman, May 7, 1892, reprinted in Blakely, American State Papers, 508; J. M. Foster, Christ the King (Boston: James H. Earle, 1894), 256; “The Supreme Court and Religion,” American Sentinel, Apr. 14, 1892, 114–115; “The Christian Religion Not a Part of the Common Law of the Land,” American Sentinel, Apr. 21, 1892, 125; “The United States Not a Christian Nation,” American Sentinel, July 7, 1892, 221–222. 57. Foster, Christ the King, 41–71, 256–260. 58. Henry Campbell Black, Handbook of American Constitutional Law (St. Paul, MN: West, 1895), 389–391. 59. Ibid., 392–394. 60. Cornelison, Relation of Religion to Civil Government, iii–iv, 176. Professor Handy’s characterization of Cornelison’s work as moderate is much too generous. See Handy, Undermined Establishment, 11–15, 23–25. 61. Cornelison, Relation of Religion to Civil Government, 350, 373–374. 62. Ibid., 176–177, 293, 299, 308, 311–314.

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63. Other opposition came from the Epworth League (Methodist), Christian Endeavor Society, YMCA, Good Templars, and Sons of Temperance. American Sentinel, Apr. 14, 1892, 119. 64. Washington Post, Apr. 7, 1892, 1. New York, New Jersey, Massachusetts, and Kentucky reportedly were considering such actions. Ibid. See also American Sentinel, Apr. 14, 1892, 119; Handy, Undermined Establishment, 72–76. 65. Washington Post, Apr. 7, 1892, 1; Apr. 8, 1892, 1; Apr. 9, 1892, 1; American Sentinel, Apr. 14, 1892, 119; Apr. 21, 1892, 123. 66. Quoted in Anson Phelps Stokes, Church and State in the United States (New York: Harper, 1950), 159–160; Washington Post, Apr. 8, 1892, 1. 67. Congressional Record, 23:5941 (July 9, 1892); and 6097 (July 13, 1892). Senator Hiscock: “I have favored the closure of the Fair on Sunday. I do not mean to say that I have not been influenced by the moral considerations involved, but I have been disposed to look at this question somewhat as a business one.” Ibid., 6047. Senator Call: “I am not giving this vote because Sunday is a religious day, or prescribed by religion, but because it is a civil institution.” Ibid., 6052. 68. Ibid., 6051. 69. H.R. 9710, Congressional Record, 23:7064–7067 (Aug. 4, 1892); Washington Post, Aug. 6, 1892, 1. 70. Once the exposition began opening on Sundays, religious groups organized a boycott of the fair and urged the U.S. attorney general, Richard D. Olney, to use troops to force the closing of the fair in accordance with the law. Blakely, American State Papers, 376. 71. Congressional Record, 26:1374, 1430 (Jan. 25, 1894): We the people of the United States, devoutly acknowledging the supreme authority and just government of Almighty God in all the affairs of men and nations, grateful to Him for our civil and religious liberty, and encouraged by the assurances of His Word to invoke His guidance as a Christian nation, according to His appointed was, through Jesus Christ, in order to form a more perfect union. See, generally, Foster, Christ the King; and “Hearings before the House Committee on the Judiciary on H. Res. 28, Proposing an Amendment to the Constitution of the United States,”54th Cong., 1st Sess. (Mar. 11, 1896). 72. Testimony and memorials in support of the amendment came from the NRA, the American Sabbath Union, Christian Endeavor, the Woman’s Christian Temperance Union, and the YMCA. “Hearings on H. Res. 28,” 3, 5, 20, 23, 32. 73. Ibid., 5. Other specific references to Holy Trinity are found at 21 and 42. 74. Ibid., 21–23, 38; Washington Post, Mar. 12, 1896, 4. 75. Sanford H. Cobb, The Rise of Religious Liberty in America (New York: Cooper Square, 1902), 524–525, 527. 76. Cornelison, Relation of Religion to Civil Government; Carl Zollmann, American Civil Church Law (New York: Columbia University Press, 1917), 12–14. 77. Cobb, Rise of Religious Liberty, 525. 78. Ibid., 511–512, 521.

456

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79. Ibid., 524–527.

CONCLUSION

1. Also included within those numbers were millions of Native Americans and African Americans whose lives, cultures, and religions were displaced by the European Americans and who were technically free, though lacking in political equality. 2. Ahkil Amar, The Bill of Rights (New Haven, CT: Yale University Press, 1998); Lash, “Second Adoption of the Establishment Clause,” 1085–1154. 3. Andrew v. N.Y. Bible and Prayer Book Society, 4 Sand. 182; State v. Petit, 77 N.W. 226; Rodman v. Robinson, 47 S.E. 19, 20–21 (N.C. 1904). 4. State v. Barnes, 132 N.W. 215, 216–217 (N.D. 1911). 5. Richard John Neuhaus, The Naked Public Square (Grand Rapids, MI: Eerdmans, 1986); Stephen L. Carter, The Culture of Disbelief (New York: Basic, 1993). 6. Autobiography of Lyman Beecher, in Wilson and Drakeman, Church and State in American History, 94–95.

Index

Abbot, Francis E., 339–340, 344, 345, 389 Abbott, Lyman, 307 Act for Establishing Religious Freedom, 5, 38–39, 217, 222 Adams, Jasper, 98–102, 199, 389 Adams, John, 16, 17, 23, 43, 46–47, 57, 72, 76, 199 Adams v. Howe, 139–140 Aldrich, P. Emory, 355–356 Alexander, John, 335–336, 338 Allen, Ethan, 87 American Bible Society, 95, 112, 338 American Sabbath Union, 342, 347, 351, 377, 380 American Sunday School Union, 95, 112 American Temperance Society, 95, 112 American Tract Society, 95, 112 Andrew v. New York Bible and Prayer Book Society, 219–220 Anglican Church (Church of England), 17, 20, 25–27, 29–30, 35–39, 41, 222 Anti-federalists, 58–59, 61–63, 76, 82 Articles of Confederation, 54–55, 73

Attorney General v. Pearson, 223–227 Atwater, Lyman, 295, 346, 353–354, 356, 357, 359, 379 Backus, Isaac, 43–45, 48, 132 Baird, Robert, 102, 353 Baker v. Fales (the Dedham Case), 141–143 Baptists, 20, 25–26, 29, 36–38, 43–44, 48, 91 and New England disestablishment, 119–121, 123–124, 127–129, 131, 133–134, 136–137, 139–140, 143 Barlow, Joel, 105 Barnes v. First Parish in Falmouth, 136–139 Bavarian Illuminati, 83, 87 Beecher, Henry Ward, 265, 278, 305 Beecher, Lyman, 81, 346, 389, 391 and Connecticut disestablishment, 119, 123, 125, 129–131, 143–144 and reform societies, 94–95, 110–112, 117 and religious skepticism, 87, 108, 110 views on church and state, 95–97

458

INDEX

Bishop, Abraham, 4, 105 Bissel, Josiah, 112 Black, Henry Campbell, 360, 377–378, 380, 383 Black, Hugo, 5–7 Blackstone, William, 152–155, 157, 159–161, 163 Blaine Amendment, 291–293, 294–302, 303, 306, 307, 308–316, 324, 354 Blaine, James G., 294–296, 307 Blair, Henry W., 342 and proposed school amendment, 307–310, 342, 377, 382, 384 and proposed national Sunday law, 351–352, 377, 382, 384 Blasphemy, 149, 152–153, 160–164, 166–169, 174–178, 352–353, 378 and profane swearing, 239–242 Bloom v. Richards, 228, 234, 280, 283 Body of Liberties, 154–155 Bolingbroke, Henry St. John, 17 Bradley, Joseph, 330, 333, 336–337 Brewer, David J., 359, 367–368, 389 and Church of the Holy Trinity, 364–367, 369 perspective on church and state, 369–376 Burgh, James, 18 Bushnell, Horace, 335, 337 Calvinism, 15, 20–21, 24, 88, 124, 126 Catholics and Catholicism, 26, 35, 178–179, 215, 299, 376 and immigration, 252, 266–268, 270 and the School Question, 252–253, 256, 258–266, 268–271, 273–278, 281–283, 286, 289–298, 301–302, 303–305, 308–309, 312, 314, 316, 321, 323 Channing, William Ellery, 109, 111, 115 Chicago Columbian Exposition, 380–381 Chipman, Nathaniel, 156 Choate, Rufus, 209

Christian amendment, 335–341, 375, 381–382 Church of the Holy Trinity v. United States, 9, 329, 364–367, 377, 380–382 Church property disputes, 221–227 Cincinnati, 260 and “Bible War” controversy (Board of Education v. Minor), 275–287, 289–290, 305, 308, 311–312, 316, 323–324, 331 City Council of Charleston v. Benjamin, 170–171, 173 Clayton, John, 168–169, 239 Clinton, De Witt, 105, 257 Cobb, Sanford, 383–384 Codification impulse, 207–210 Commonwealth v. Cooke, 273–274 Commonwealth v. Wolf, 185, 187, 231–232, 235, 237–238 Coke, Sir Edward, 151–152, 155, 157, 160, 163 Colwell, Stephen, 102, 353 Comstock, Anthony, 342 Congregational Church, 20, 26, 37, 91 and New England disestablishment, 119, 121, 123–136, 139–143 Connecticut, 68 colonial establishment, 26 and disestablishment, 95, 123–131 state establishment, 34, 51 Constitution drafting of religion clauses, 61–72 as having a religious foundation, 55–56, 72–75 and ratification, 57–61 and religious test clause, 55–56, 57–61 sanctification of, 84, 96–97, 102–103, 357 Continental and Confederation Congresses, 54–55 Cook, Joseph, 342, 346 Cooley, Thomas, 360–362, 363, 378, 379, 383

INDEX

Cornelison, Isaac, 378–380 Cotton, John, 154–155 Dane, Nathan, 156–157, 212–213 Darwinism (evolution), 332, 353 Dayton, Jonathan, 97 Declaration of Independence, 53–54 Deism (Deists), 23, 31, 44, 56, 83, 86–87, 106, 108 Delaware, 26 and disestablishment, 32–33 Demands of Liberalism, see Nine Demands of Liberalism Democratic Party, 293, 294, 299, 303 Democratic-Republican Party, 37, 87, 105–106, 257 and New England disestablishment, 119, 121–123, 127–132, 135–136, 139 Dickinson, John, 18, 19, 54 Dies non juridicus, 187–189, 227–231 Donahoe v. Richards, 271–273, 274 Duncan, Thomas, 165–168, 174, 353 du Ponceau, Peter, 207–208 Dutch Reformed Church, 20, 25, 91 Dwight, Timothy, 88–90, 105, 111, 123, 346 Ellsworth, Oliver, 59–60, 66 Ely, Ezra Stiles, 108–109 Enlightenment thought, 39, 56–57, 58 and the Revolution, 15–24, 31–33 Episcopal Church, 91, 119, 123–124, 129–130, 133, 191–192, 222 Evangelical Alliance, 308–309, 342 Evans, George, 107–110, 257, 279 Everson v. Board of Education, 5–6, 10, 41–42, 64, 67, 74 Federalist Party, 37, 89, 105–106, 208 and New England disestablishment, 119, 121–122, 125, 129–130, 142 Federalist Papers, 57, 60–61

459

Federalists, 60–61, 76, 82 Field, Stephen J., 243–244, 343 Finch, Henry, 151–152 First Amendment, drafting of, 64–72 Franklin, Benjamin, 23, 55, 82, 97, 254 Free Religious Association, 339 Free School Society, 255–261, 331 Freeman v. Scheve, 319–321 Freethinkers, 106–110, 113, 339 Frelinghuysen, Theodore, 102, 107–108, 110, 117 French Revolution, 56, 85–87, 388 Frothingham, Octavius Brooks, 339 General Union for the Promotion of the Christian Sabbath, 95, 112–113, 116 Georgia, 31 and disestablishment, 36 state establishment, 33, 36 Gerry, Elbridge, 66, 70, 135, 139 Goodenow, Milton, 208 Grant, Ulysses S., 291–295, 297, 299, 338, 354 Hale, Sir Matthew, 152–153, 160 Hamilton, Alexander, 60–62, 89, 103 Harris, William Torrey, 289, 297, 305–306, 311, 324, 363, 389 Health-and-welfare rationales, 242–247, 360 Henry, Patrick, 39 Hieronymus, 45–46 Hitchcock, Enos, 60, 74, 86 Hoffman, David, 157, 160 Holmes, Oliver Wendell, 367 Hughes, John, 260, 263, 268 Huntington, Benjamin, 69–71 Ingersoll, Robert G., 352 In re King, 349–350, 351 International Reform Bureau, 342, 351 Iredell, James, 56, 60 Jackson, Andrew, 106, 108, 115

460

INDEX

Jefferson, Thomas, 7, 9, 53–54, 86–87, 91, 104–105, 108, 168, 199, 355, 379 and controversy with Joseph Story, 91, 193–196 and education reform, 254 and election of 1800, 3–4, 88–89, 106 letter to Danbury Baptist Association, 4, 127–128 and Virginia disestablishment, 38, 40–42 Jeffersonian perspective, 105–106, 110, 115, 129, 135, 144, 390 Jews, 73, 82, 170, 178, 184–185, 187, 215, 262, 276, 277, 301, 310, 321, 323, 336, 352, 377 Johnson, Richard M., 115–117, 388 Jones, Alonzo T., 310, 352 Kent, James, 162–164, 167, 169, 202, 353, 360 Commentaries on American Law, 157–158 and the common law, 157, 210–211 and higher law, 152, 157–158, 160 and the New York Constitutional Convention of 1821, 164–165 Kneeland, Abner, 107, 110, 388 prosecution for blasphemy, 174–178 Know-Nothing Party, 269 Knox, Samuel, 255 Lawes and Libertyes, 155 Legal reform, 206–214 Leland, John, 124, 127–128 Liberal League, 339, 345, 356, 373, 389 Linn, William, 3, 75, 84, 88, 90 Livermore, Samuel, 66, 68, 71 Locke, John, 16–19, 30, 38, 40, 54 Lord’s Day Alliance, 347, 351 Madison, James, 7, 17, 53, 57, 60–62, 97, 198–199, 286, 379 and the drafting of the religion clauses, 64–68, 70–73

and Jasper Adams, 98, 100–101 Memorial and Remonstrance, 5, 39–42, 101 and Virginia disestablishment, 37–42 Mann, Horace, 252, 255, 261–265, 275, 281, 305, 321, 324, 331 Marshall, John, 99, 156–157 Maryland, 63, 162 colonial establishment, 25 and disestablishment, 35–36 state establishment, 31–33, 68 Mason, John, 3, 85, 87–90 Massachusetts, 68 colonial establishment, 26 and disestablishment, 131–143 state establishment, 31–34, 42–50 Matthews, Stanley, 279–281, 283 Mayo, Avery, 277 Memorial and Remonstrance, 5, 39–42, 101 Methodists, 91, 119–120, 123, 127, 129, 131, 133, 136, 140, 143, 258–259, 304, 316–317, 342 Miller, Joseph, 224–226 Montesquieu, Baron Charles-Louis, 17 Mormonism, 342, 343 Morris, Benjamin F., 102–103, 353 Morse, Jedidiah, 86, 92 Morse, Samuel F. B., 267 Morton, Marcus, 177, 239 Murray, John, 132–134 National Reform Association, 307, 308, 319, 333, 334–336, 344–345, 372, 373, 375, 377 and the Chicago Columbian Exposition, 380–381 and the Christian amendment, 335–341, 381–382 legislative efforts, 333, 336–337, 341–342, 347, 351–352 Nativism and anti-Catholicism, 253, 266–271, 277–279, 294, 298, 302 New Hampshire, 64, 68, 71 colonial establishment, 26

INDEX

and disestablishment, 121–123 state establishment, 31, 33–34 New York colonial establishment, 25–26 and disestablishment, 33 and the School Question, 255–261 Nine Demands of Liberalism, 335, 345, 356 North Carolina colonial establishment, 25–26 and disestablishment, 33, 48 Northwest Ordinance, 73–74, 279–280 Nuisance rationales in profane swearing cases, 239–242 in Sunday cases, 231–239, 330, 378 Oath requirements, 178–182, 196 Owen, Robert, 107–108, 110 Owen, Robert Dale, 107–108, 199, 257, 279, 388 Paine, Thomas, 87, 104, 161 Palmer, Elihu, 87, 104, 106 Parker, Samuel, 175–176 Parsons, Theopilus, 133–134, 136–139, 141 Payson, Philip, 44–45 Pearce v. Atwood, 184, 185, 187 Pennsylvania, 31, 71, 82 colonial situation, 26–27 and disestablishment, 31, 33, 48 People ex rel. Ring v. Board of Education, 321–324 People v. Ruggles, 162–164, 165, 167–169, 173–174, 220, 317, 338, 355, 357 Pfeiffer v. Board of Education, 311–312, 318–320 Philadelphia Bible War, 268 Philadelphia Centennial Exposition, 343–345 Presbyterians, 20, 25–26, 29–30, 38–40, 41, 72–73, 91, 121, 133, 224, 317, 335 Priestly, Joseph, 17 Probate law, 218–221

461

Public School Society (see Free School Society) Purcell, John Baptiste, 260, 276–277 Quakers, 123, 131, 133, 179, 255 Rantoul, Robert, 208 Reformed Presbyterian Church, 335, 344 Religious establishment, understandings of, 27–29, 29–30, 104–105, 121–122, 135, 137–138 Religious Liberty Association, 310, 352 Republican Party, 293–294, 298–301, 307 Root, Jesse, 156 Ruffin, Thomas, 232–233, 234 Rush, Benjamin, 56, 82, 251, 254 Rutledge, Wiley, 6–7 St. Germain, Christopher, 151–152 Sampson, William, 208 Saybrook Platform, 123, 125 Schaff, Philip, 356–358 Scientific impulse in the law, 210–211 Second Great Awakening, 83, 91, 388 Secularization thesis, 10–11 Seventh-day Adventists, 310, 347–348, 352, 377 Seventh Day Baptists, 347–348 Seward, William, 260 Shaw, Lemuel, 176, 213 Shea, George, 355–356 Sherwood, Samuel, 22 Skepticism, 87, 106–110, 353 Smith, Jeremiah, 121–122, 125 South Carolina colonial establishment, 25, 27 and disestablishment, 29–30, 36 state establishment, 33, 34–35, 68 Sparhawk v. Union Pacific Passenger Railway Co., 236–238, 241 Spear, Samuel, 278, 297, 305, 306, 331, 389 Stallo, Johann, 280–281 State v. Chandler, 168–169, 173–174, 239

462

INDEX

State v. Williams, 232–234 Stevenson, T. P., 308–309, 344–345, 351 Stiles, Ezra, 23, 86 Story, Joseph, 99–100, 353, 355, 360, 361, 363, 379, 380 advocate for higher law, 152, 158–160 American Jurist article, 100, 195–196 and the common law, 157, 158, 210–211 Commentaries on the Constitution of the United States, 5, 100, 159–160, 196–199, 378 dispute with Thomas Jefferson, 91, 193–196 Girard will case (Vidal v. Girard’s Executors), 199–203, 218, 317, 338 and the Massachusetts Constitutional Convention of 1820, 142, 191 religious beliefs, 190–191 views on church and state, 191–192, 196–199 Street, Nicholas, 21–22 Strong, George Templeton, 266–267 Strong, Josiah, 331, 332, 353 Strong, William, 236–238, 337–338, 347 Sullivan, James, 133, 135 Sumner, Charles, 336, 340 Sunday (Sabbath) laws and enforcement, 170–171, 182–190, 345–352, 360, 374 and development of secular theories, 227–231, 231–239, 242–247, 330, 354 Sunday Mail Delivery Controversy, 110–118, 199 Swift, Zephaniah, 125–128 Taft, Alphonso, 282–287, 389 Tappan, David, 84, 86 Taylor, Nathaniel W., 123 Tennant, William, 29–30 Test and Corporations Acts, 21, 27, 82

Thomas, Clarence, 67 Tiedeman, Christopher G., 362–363, 378, 383 Turner, Charles, 58–59 Unitarians, 119, 132–136, 140–143, 191, 262–263, 277 Universalists, 119, 121, 127, 129, 131–133, 136, 140, 143, 179–180, 196, 215 Updegraph v. Commonwealth, 165–168, 173–174, 200, 228, 237–238, 241, 287, 317, 338, 357 Vermont, 31 and disestablishment, 36–37, 120–121 and state establishment, 33, 68 Verplanck, Guilian C., 211–212 Virginia colonial establishment, 25 and disestablishment, 37–42 Walker, James M., 211 Walker, Timothy, 207–209, 212–213 Ward, Nathaniel, 154 Washington, George, 18, 23, 56, 97, 199 views on church and state, 72–73 Watson v. Jones, 224–227 Webster, Daniel, 142, 200, 202, 218 Webster, Noah, 56, 82 Weems, Mason Locke, 103 Weiss v. District Board of School District No. 8, 313–318, 319, 320, 321–324 Welch, John, 285–287 West, Samuel, 49–50 Wilson, James, 17, 156–157, 160 Woman’s Christian Temperance Union, 307, 342, 347, 351 Worcestriensis, 28–29, 43 Wortman, Tunis, 104–105 Wright, Frances, 107–110, 199, 257, 279