Religion and the American Constitutional Experiment

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John Witte Jr., Joel A. Nichols
  • New York, NY: 
    Oxford University Press
    , April
     424 pages.
     For other formats: Link to Publisher's Website.


Religion and the American Constitutional Experiment is an excellent introduction to religious liberty in the United States. The book is organized into thirteen chapters including an overview of the Western European historical context, the varied opinions of the Founding Fathers in drafting the religious clauses of the Constitution, and the interpretive strategies and rulings of the US Supreme Court.

John Witte, Jr. and Joel A. Nichols begin in ancient Rome when early Christians were a religious minority persecuted as non-conformists and agitators. After the conversion of Constantine, the Edict of Milan (313 CE) declared religious toleration; less than a century later, Christianity was established as the state religion and suppressed other worship. After the fall of the Empire, the Roman Catholic Church declared itself the sovereign superior of Christendom with the authority to proclaim and enforce law. In accord with the “two powers” of Augustine, the Church in the medieval period wielded the “two swords” of temporal and spiritual authority. Civil offices were subordinate to the clergy’s “two keys” of knowledge and power to discern and enforce God’s will. After the Papal Schism, Christendom fractured in dissent, disobedience, and rebellion. The authors describe four groups in the Protestant Reformation: the Lutherans who denied the legitimacy of the Pope in favor of local officials; the Anglicans who formed a national religion in the Act of Succession (1534); the Anabaptists who emphasized voluntary choice of association and virtues such as hospitality and charity; and the Calvinists who introduced a democratically-elected consistory.

At the time of the American Revolution, the British colonies and frontier were home to missionaries, traders, refugees, and misfits. Four groups among the Founding Fathers rejected the Anglican Establishment and debated principles of religious liberty. The Puritans (Calvinists and Presbyterians) favored representative local control and freedom to worship so long as it does not disturb the peace. The Evangelicals (Baptists, Amish, and others) were content with religious pluralism and favored a “wall of separation” to protect the church from the state. They feared both repression and patronage by the government. The Enlightenment Liberals were contractarian and privileged private reason and conscience. They argued against political privileges for religion and embraced religious freedom except where it violates neighbors’ rights or public order. The Civic Republicans advocated a mild state embrace of religious plurality for a common public ethic, a guard against persecution, and as effective allies in civic welfare.

The Founding Fathers wrote twenty-five drafts of the First Amendment religious clauses before the final text was approved. A mere sixteen words integrate six essential rights and liberties of religion: 1) liberty of conscience, inclusive of voluntarism, prohibition of discrimination and coercion, and exemptions from human impositions or legal restraints; 2) free exercise of religion – the right to engage in public religious actions, including worship, speech, assembly, publication, education, and more; and, deference to the sovereignty of religious societies and legal structures; 3) religious pluralism – protection and encouragement for a sociological fact; 4) religious equality – no religious tests or oaths, no preferential treatment; 5) separation of church and state – protects church from state, protects state from church, protects individuals from coercion and intrusions by church or state, and protects local government from federal domination; and, 6) disestablishment of national religion – no mandatory belief, doctrine, or practice. An “original intent” reading of the religious clauses restricts Congress from prescribing or proscribing religion, without limitation on state governments or the executive and judicial branches of the federal government. It limits congressional interference and prohibits establishing a national religion. In 1947, the Supreme Court applied the First Amendment to state and local governments via the Fourteenth Amendment Due Process Clause.

Supreme Court cases regarding free exercise of religion involve a conflict between an exercise of governmental power and violations of rights. There must be an actual injury caused by an unconstitutional law, which if removed or exempted from compliance, will grant relief. In cases concerning polygamy and conscientious objection to military service, the Court deferred to legislation with minimal review. Beginning in the 1940s, the Court expanded their interpretation to grant exemptions while upholding restrictions where criminal law is violated and mildly limiting religious expression with time-place-manner regulations. Since the 1990s, local statutes have been the most effective instruments to protect the free exercise of religion.

Modern establishment law is concerned with government funding, endorsement, and coercion through improper alliances and preferential discrimination. Historically, the Court has taken three positions: 1) separationism, restricting religious purposes for laws and government interference in religious groups; 2) accommodationism, cooperation between the state and religions to deliver charity, education, and other social services; and 3) neutrality. The third stance is based on the Lemon Test: a challenged law must have a secular purpose, the primary effect neither advances nor inhibits religion, and no excessive entanglement between church and state.

Since the 1980s, the Court gives equal protection to religions in public life and recognizes religious history and tradition as part of a cultural heritage. Establishment cases typically involve religion and public education, where a separationist ban on religious teachers, texts, teachings, prayers, and ceremonies is not the only principle governing public schools. The Court observes that a quarantine of students from religion harms more than helps democratic values and therefore assigns a necessary place for study of religion in history and literature classes. Other cases involve government and religious education. Until 1971, private religious schools were given resources to operate under state standards and accreditation requirements, including instruction and testing in general education. The Court banned aid to religious schools, students, teachers, and parents until 1986, when indirect funding through school choice vouchers allowed equal treatment without an establishment of religion.

The authors provide clear description of complicated case law and public policy for students and citizens. They reveal patterns and principles on a subject often caricatured by wild generalizations and widespread confusion. Academics and experts across a range of fields and professions will appreciate their fine analysis and comprehensive scholarship. The authors refute a weak postmodernist critique of religious freedom and offer a provocative perspective on the history of liberty of conscience.

About the Reviewer(s): 

Patrick Horn is a public scholar.

Date of Review: 
February 16, 2017
About the Author(s)/Editor(s)/Translator(s): 

John Witte, Jr. is Robert W. Woodruff Professor of Law, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. A leading specialist in law and religion, legal history, and religious liberty, he has published 220 articles and 28 books, including Religion and Human Rights (Oxford, 2012) and No Establishment of Religion (Oxford, 2012).

Joel A. Nichols is Associate Dean for Academic Affairs and Professor of Law at the University of St. Thomas (MN), and Senior Fellow in the Center for the Study of Law and Religion. He has published two dozen articles on family law, constitutional law, and human rights, including Marriage and Divorce in a Multicultural Context (2012).



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