U.S. Law: Religious or Secular?

Jennifer Jopp

One Nation Under Law:
America’s Early National Struggles to Separate Church and State
by Mark Douglas McGarvie
Dekalb, IL: Northern Illinois University Press, 2004. 256 pages, $38 cloth.

“THE FOUNDING FATHERS,” my fundamentalist Christian friend once declared to me in the midst of a rather heated argument, “were Christians and created a Christian country.” “No, you’ve got it all wrong,” I sputtered and hastened to explain, “Jefferson was a Deist.”

Her argument is one I hear with increasing frequency in recent years. My friend, as do many other evangelicals, draws a direct line from Puritan theologians to contemporary Evangelical Christians passing through the Founding Fathers. She believes that the United States is a Christian country founded on Christian precepts and guided by Christian morality.

Her country is not my country. Mine is a secular country created as a result of a modern, and very radical, experiment. My country enshrines freedom of conscience. The Founding Fathers I know spoke of liberty, not duty; of equality, not hierarchy; of an “asylum for mankind,” not a Biblical commonwealth.

Yet I heard her words, and our argument, echoed over and over: in public discussions, in political debates, in proposals for reconfiguring the relationship between church and state, and in the proliferation of books on the topic in recent years.(1)

I — a student of early American history — knew she was wrong, but how to explain? I began to dig a little deeper, to sharpen my tools, if you will. My digging led me to Mark Douglas McGarvie’s One Nation Under Law: America’s Early National Struggles to Separate Church and State. I found it a riveting and illuminating book that altered in a profound way my understanding of early American history.

I learned  that, while my friend was wrong about the Founding Fathers, my own thoroughly secular education left me unprepared to understand the complexity of the historical roots of the conflict over the role of religion in American society. And, more important, ill-equipped to argue my case.

Disestablishing State Churches

McGarvie’s book is a study of the political struggles that surrounded the disestablishment of state churches in the early National period. He begins by pointing out that many Americans share my previously held and flawed assumption that the First Amendment “separates church and state.”

Rather, McGarvie elucidates, the Amendment protects religious expression as a matter of private conscience from incursion by government. It does not, in fact, separate church and state. One might at this juncture despair that the evangelicals have a point, when they argue that the Constitution did not separate church and state.

Not so fast, says McGarvie, who asserts that the Constitution provided the legal and ideological structure that made separation ultimately inevitable. Moreover, a larger cultural transformation — unleashed by the Revolution and nurtured by the societal and cultural changes of the early Republic — hastened and supported this development.

McGarvie’s work traces the transformation of the church from a public institution, with a central role in the governance of the polity, to a private voluntary association. This reconfiguration removed churches from the public sphere; state institutions gradually assumed responsibility for the many services earlier performed by churches.

Disestablishment freed people from the taxes and allegiance once owed the churches. But the process of finding new state institutions to take on the tasks of the churches was often difficult.

Throughout his study, McGarvie conceptualizes the law as an arbiter mediating between powerful rivals: the forces of Enlightenment thought ranged against those of Calvinist Protestantism.  In the new republic of laws, lawyers replaced the clergy as the conscience of the nation and laws the earlier Christian edicts. Law, in his view, ultimately sided with the secularists.

McGarvie’s focus is on the ferocious debates that accompanied the process of disestablishing state churches. He first traces the role of churches in colonial society, turns to the tumult created by the Revolutionary era and its impact on the churches, regards the Constitutional consideration of religion, and then studies the connections between ideology and religion in the early Republic.

He then turns to three case studies of disestablishment. New York provides an illustration of early, Revolutionary-era disestablishment. South Carolina, by contrast, later experienced disestablishment during the Constitutional period.

The work culminates in his consideration of the famous Dartmouth College case, which for McGarvie is the final expression of the liberal republican ideology gaining ground during the early national period. This case reconfigured American civil society and closed the door on the colonial model of communitarian social order, with the church at its center, to one in which the church was re-conceived as a private voluntary association.

Church in the Colonies

McGarvie begins with the colonial period and a probing look at the role of churches in early American society. To fully appreciate the later extrication of churches from civil society, McGarvie seems to suggest, we need to comprehend their role in the colonial social order.

Invoking Winthrop’s “Modell of Christian Charity,” McGarvie offers up a thoroughly communitarian social order in which the church mitigated the worst poverty, meted out punishments, bolstered the existing hierarchy, inculcated deference and the eschewing of selfish desires, and shaped the colonists’ world view.

“Protestant Christianity,” he declares, “provided the ideological basis of a colonial American worldview, and colonial churches served as the institutional vehicles of its dissemination.” (22) Establishment, in this view, was the “societal reflection and perpetuation of Christian values shaping … all aspects of colonial intellectual and cultural life.” (31)

The 18th century brought changes and depredations at the door of such closely knit communities. Economic, political and religious forces began to loosen the ties that bound individuals to established churches.

The established churches, in turn, reacted with alarm to the pull of revivalists and the proliferation of religious sects, as well as to the increasing divergence of doctrinal beliefs within American Christianity. Yet they could not stem the migration to new churches, which sapped the strength of the integrated systems of church and state.

The issue of political sovereignty and the struggle for independence dominated public discourse during this era. The fate of churches in the new republican society was greatly influenced by events: During the war years, a confluence of religion and nationalism reshaped American Christianity.

Republican revolutionaries conjoined ecclesiastical liberty and political liberty. Many sermons reflected this redirection of religiosity; the “chosen people remained in covenant with God but toward different ends-republican government and a productive economy.” (35) The Revolutionaries, many of them “skeptics who could not fairly be considered Christians,” found that religions served their political interests and united disparate peoples. (40)

Constitution and Civil Society

The Constitutional Convention rarely addressed matters of religion. In fact, the new government embarked on a radical departure from the past. The Founders, McGarvie, argues, did not premise their newly-created society on an ethic derived from Christianity, but rather on a legal ethic derived from Enlightenment conceptions of individual integrity. (47)

For McGarvie the centerpiece of this newly-conceived social order is Article 1, section 10 of the Constitution. Contract law, which McGarvie sees as the embodiment of liberal ideas of individual autonomy, was to be the chief means of protecting individual liberty.

This newly-envisioned civil society would take decades to bring to fruition, as states struggled to disestablish churches and assume responsibility for the tasks once assigned to ecclesiastical entities. Thus, the author outlines a lengthy process by which Americans slowly removed all vestiges of religion from public governance.

Yet this process proceeded in fits and starts, as governments continued to rely on churches and religious institutions to fulfill social needs. In a chapter titled “God Is as Man Makes Him,” McGarvie excavates an earlier version of our current “culture wars.”

Neither the Revolution nor the construction of new governments dampened the contest for control of the nation’s soul. Education, crime and punishment, regulation of business and entertainment, and responsibilities for the poor (sound familiar?) all became battlegrounds on which the forces of Christian communitarians and liberal secularists fought for supremacy.

Nevertheless, disestablishment proceeded apace. McGarvie offers case studies of disestablishment to illustrate the variety of experience and the influence of local conditions on the process.

In New York the process began early, fueled by revolutionary fervor and unencumbered by a dominant sect or denomination. Disestablishment came to New York when it was written into the new state constitution of 1777 without dissent or debate.

New York’s commercial origins provided history of liberal use of corporate law, and this circumstance, too, fueled the early redefinition of churches as private organizations. In South Carolina, by contrast, a different history and different class forces influenced the process of disestablishment.

An Anglican planter elite, long accustomed to relying on an established church to preserve social hierarchy and social deference, not to mention racial control, resisted the intrusion of “foreign” law and liberal ideas. Only when newly established dissenting churches called for the abolition of slavery and racial equality before God did South Carolinians transform their churches into fully private institutions.

The reorientation of religion under the 1790 constitution reflected a growing fear of the condemnation of slavery by Christian communities.

The Dartmouth Case

The 1819 Dartmouth College case, in McGarvie’s view, is the culmination of decades of development.(2)

In his treatment of this famous case, McGarvie pulls together various strands of his argument. In a rare instance of “…subordinat[ing] state policy to national values…,” the Supreme Court “…confirmed the supremacy of liberal contract-law doctrine in all of the United States.” (152)

New Hampshire’s integration of public and private institutions, which the Court held to violate the Constitution, had reflected yet another regional adaptation. The Court’s decision in the case cut short this perpetuation of the colonial model. In so doing, the Court redefined civil society: In McGarvie’s view, the Dartmouth decision “privatized religion” as it “secularized…the public realm.” (188)

A case that “ma[de] law for the nation,” the Dartmouth College case is difficult to extricate from the intricate lines of political interest in post-Revolutionary New Hampshire. Named for the earl of Dartmouth (an early investor), the college was granted a Royal Charter in 1769 that decreed, “…that there shall be in the said Dartmouth College, from henceforth and forever, a body politic…” (169)

Forever is a long time, and in the heated political environment of early national New Hampshire, the sole college in the state was the object of intense and covetous interest. Republicans sought to gain a foothold in the new “university” and rework it into a republican institution in service to “the preservation of a free government,” by increasing the number of trustees, imposing the practice of religious freedom, and secularizing the school’s curriculum. (171)

Opponents of such reforms countered that the school’s mission must remain the cultivation of clergy for the new nation. The Supreme Court ultimately decided, however, that the college was “a private eleemosynary institution” and, as such, was “no more a state instrument than a natural person would be.” (175, 177)

The Court concluded that perceptions of the public good notwithstanding, the actions of the New Hampshire Legislature could not overcome the rights of “individuals” in contracts. Later the same year, the Toleration Act completed the process by ending the system of tax-supported religion in New Hampshire.

Echoes of Our Time

Ironies abound in the early history of religion and law, among them that while our sympathies are with the secularists who advocated freedom of conscience, we might also empathize with those communitarians — Christian or not — who railed against the new order of individualism and rampant commercialism.

We cannot help but want to stand with those who decried the destruction of the old order and the rise of contract theory. Yet these were the men who saw secularists as “the enemy,” and, indeed, one “more insidious, but not less formidable, than the approach of a foreign army….” (cited, 88. Sound familiar?)

Readers may certainly find unconvincing McGarvie’s insistence that the law operates on the basis of ideas rather than interests, as well as his view that law operates on a plane above the fray. His disembodied law commands the separation of church and state from the heights by delineating public and private spheres, and creating a society “under law.”

The great weight he attributes to one case, albeit an important one, may also raise some questions. Moreover, he overemphasizes the communitarian aspects of early colonial life all the better to throw into relief the later, secular political order.

Nevertheless, the book serves as an illuminating look into the early history of the relationship between church and state in our country. In the increasingly vociferous and vituperative battles we witness today it behooves us to be fully informed.

The Founding Fathers did, indeed, create a secular state. The historical forces that led them to inscribe absolute liberty of conscience in matters of religion in the Constitution, and to cast a wary eye on religion, also supported the process of disestablishing state churches. The intent, as Madison explained, was “the idea of religious freedom as protected by the separation of church and state.” (57)

Notes

1. For a recent example of a proposal addressing the relationship between church and state, see Noah Feldman, “God’s Country: A Provocative Proposal for Redrawing the Line Between Church and State,” The New York Times Magazine, July 3, 2005, Section 6, 28-33, 50-53.

   Feldman’s proposal involves turning on its head the current Supreme Court approach to church-state relations. Governed by “O’Connor’s Compromise,” the Court for 20 years has sought to allow for some governmental financing of religion while eschewing government endorsement of religion. Feldman advances, by contrast, the argument that greater latitude for religious speech and symbols coupled with curtailing state financing of religious institutions and activities might mitigate the current conflict (see Feldman, 32). These ideas are also addressed in Feldman’s new book, Divided by God: America’s Church-State Problem and What We Should Do About It (Farrar, Straus & Giroux, 2005).
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2. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat) 518 (1819).
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Further Resources

THERE IS A vast and growing literature on this subject. Here are some resources that warrant a closer look:

Frederick Clarkson, Eternal Hostility: The Struggle Between Theocracy and Democracy. Common Courage Press (Monroe, Maine), 1997. Clarkson recently (May 18, 2005) spoke with Terry Gross on “Fresh Air.

Among academics — some quite conservative — working on the subject, a recent trend is excavating the original language of phrases we use still today to discuss matters of religion and the state. Daniel Dreisbach, as one example, traces the history and application of the “wall of separation” metaphor from its origins in the writings of Roger Williams to contemporary speech, arguing along the way that our current conception of the image is erroneous. See Daniel Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State. New York University Press (New York and London), 2002.

Philip Hamburger, Separation of Church and State. Harvard University Press (Cambridge and London), 2002. It is Hamburger’s argument, by the way, whom McGarvie is most directly challenging in One Nation Under Law.

Some other titles of interest include:

Rob Boston, Why the Religious Right is Wrong. Prometheus Books, 1994.

Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness. W.W. Norton & Co., 1997

Frank Lambert, The Founding Fathers and the Place of Religion in America. Princeton University Press, 2003.

Mark Weldon Whitten, The Myth of Christian America: What You Need to Know About Separation of Church and State. Smyth & Helwys Publishers, 1999.

ATC 118, September-October 2005