No establishment of religion : America's original contribution to religious liberty

426 Pages·2012·2.667 MB·English

by  Gunn, Gunn Thomas Jeremy, Witte, John

No Establishment of Religion
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No Establishment of Religion
America’s Original Contribution
to Religious Liberty
Edited by
T. Jeremy Gunn
and
John Witte, Jr.
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Library of Congress Cataloging-in-Publication Data
No establishment of religion : America’s original contribution to religious liberty / edited by
T. Jeremy Gunn, John Witte, Jr.
p. cm.
Includes bibliographical references (p. ) and index.
ISBN 978-0-19-986039-5 (pbk. : alk. paper) — ISBN 978-0-19-986037-1 (hardcover : alk. paper)
1. United States—Religion—History. 2. United States. Constitution. 1st Amendment.
3. Freedom of religion—United States. 4. Church and state—United States.
I. Gunn, T. Jeremy (Th omas Jeremy) II. Witte, John, 1959–
BL2525.N6 2012
322(cid:99).10973—dc23 2011043410
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
{ Contents }
Acknowledgments vii
List of Contributors ix
Introduction 3
John Witte, Jr.
1. Th e Separation of Church and State versus Religion in the Public
Square: Th e Contested History of the Establishment Clause 15
T. Jeremy Gunn
2. Establishment at the Founding 45
Michael W. McConnell
3. Disestablishing Religion and Protecting Religious Liberty
in State Laws and Constitutions (1776–1833) 70
Mark D. McGarvie
4. Roger Williams and the Puritan Background of the
Establishment Clause 100
David Little
5. Toleration and Diversity in New Netherland and the
Duke’s Colony: Th e Roots of America’s First Disestablishment 125
Paul Finkelman
6. James Madison, Th omas Jeff erson, and the Meaning of
“Establishment of Religion” in Eighteenth-Century Virginia 158
Ralph Ketcham
7. Th e Continental Congress and Emerging Ideas of
Church–State Separation 180
Derek h. Davis
8. Th e First Federal Congress and the Formation of
the Establishment Clause of the First Amendment 208
Carl H. Esbeck
9. Defi ning and Testing the Prohibition on Religious
Establishments in the Early Republic 252
Daniel L. Dreisbach
10. Th e “Second Disestablishment”: Th e Evolution of Nineteenth-
Century Understandings of Separation of Church and State 280
Steven K. Green
11. Disestablishment from Blaine to E verson : Federalism,
School Wars, and the Emerging Modern State 307
Thomas C. Berg
12. Some Refl ections on Fundamental Questions about the
Original Understanding of the Establishment Clause 341
Kent Greenawalt
13. Getting Beyond “Th e Myth of Christian America” 364
Martin E. Marty
Bibliography 379
Index 399
{ Acknowledgments }
It has been a special privilege for me to collaborate on this volume with my
distinguished colleague and friend, T. Jeremy Gunn. Th e idea for this volume
emerged during Jeremy’s tenure as director of the Program on Religion and
Belief at the American Civil Liberties Union. Th ere he kept encountering
scholars on both the right and the left who exchanged partial accounts of the
history of the First Amendment Establishment Clause. He also encountered
advocates in both federal and state courts who seemed to have lost sight of the
unique place of the no-establishment clause in the protection of religious lib-
erty. Th is volume aims to deepen our understanding of the establishment
clause in American history and our appreciation for its signature contribution
to the modern understanding of religious liberty.
We have incurred a number of debts in the preparation of this volume,
beyond the authors who have so generously shared their time and talents with
us in its preparation. We would like to acknowledge that this work was sup-
ported in part by a generous contribution from the American Civil Liberties
Union. We wish to emphasize, however, that the ACLU played no role in editing
any of the work included in this volume. Accordingly, the views expressed in
this volume are not intended to refl ect the views of the ACLU and, in some
instances, may disagree with positions taken by the ACLU.
We also wish to express our deep appreciation to our friends at the Henry
Luce Foundation, particularly Michael Gilligan, Terry Lautz, and Toby Volkman.
Th e Luce Foundation gave our Center for the Study of Law and Religion at
Emory University a major grant for a project on “Law, Religion, and Human
Rights,” of which this volume is part and product. We wish to thank Ms. Amy
Wheeler and Ms. Anita Mann of the Center for the Study of Law and Religion at
Emory University for their expert administrative support of this project. We
thank the Northern Illinois University Press and the U tah Law Review for their
permission to reprint portions of the chapters by Mark McGarvie and Carl
Esbeck. And we thank Emory law and religion students Justin Latterell, Andy
Mayo, Jamie Schickler, and Judd Treeman for their excellent research assistance.
John Witte, Jr.
Emory University
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{ List of Contributors }
Th omas C. Berg is James L. Oberstar Professor of Law and Public Policy at the
University of St. Th omas School of Law, Minnesota.
Derek Davis is Dean Emeritus of the College of Humanities and Dean Emeri-
tus of the Graduate School of Arts and Sciences at the University of Mary
Hardin-Baylor.
Daniel L. Dreisbach is Professor of Justice, Law and Society at American
University.
Carl H. Esbeck is the R. B. Price Professor and Isabelle Wade & Paul C. Lyda
Professor of Law, University of Missouri.
Paul A. Finkelman is currently the John Hope Franklin Visiting Professor of
American Legal History at Duke University School of Law and also the Pres-
ident William McKinley Distinguished Professor of Law and Public Policy
at Albany Law School.
Steven K. Green is Fred H. Paulus Professor of Law and Director of the Center
for Religion, Law & Democracy at Williamette University College of Law.
Kent Greenawalt is University Professor, Columbia Law School.
T. Jeremy Gunn is Professor in the School of Humanities & Social Sciences, Al
Akhawayn University, Morocco and Senior Fellow of the Center for the
Study of Law and Religion at Emory University.
Ralph Ketcham is Professor Emeritus of History, Public Aff airs, and Political
Science and Maxwell Professor Emeritus of Citizenship and Public Aff airs at
Syracuse University.
David Little is T. J. Dermot Dunphy Professor Emeritus of the Practice in
Religion, Ethnicity, and International Confl ict at Harvard Divinity School.
Martin E. Marty is Fairfax M. Cone Distinguished Service Professor Emeritus
at the University of Chicago and Senior Fellow at the Center for the Study of
Law and Religion at Emory University.
Michael W. McConnell is Richard and Frances Mallery Professor of Law and
Director of the Stanford Constitutional Law Center at Stanford Law School
and Senior Fellow of the Hoover Institution, Stanford University.
Mark McGarvie is a lecturer in history and leadership studies and Director of
Pre-Law Advising at the University of Richmond.
John Witte, Jr. is the Jonas Robitscher Professor of Law, Alonzo L. McDonald
Family Foundation Distinguished Professor, and Director of the Center for
the Study of Law and Religion, Emory University.