Vol. 10 No. 8 (August 2000) pp. 494-497.

RELIGION AND THE CONTINENTAL CONGRESS, 1774-1789: CONTRIBUTIONS TO ORIGINAL INTENT by Derek H. Davis. New York: Oxford University Press, 2000. 309 pp. Cloth $39.95.

Reviewed by John von Heyking, Department of Political Science, University of Lethbridge.

In a case heard this past June, the United States Supreme Court decided that student-led prayers at Texas high school football games are unconstitutional. The Court decided that the school board's attempt to solemnize football games contravened the Establishment Clause (SANTA FE IND. SCH. DIST v. DOE 2000). In his exhaustively documented and philosophically informed volume on the Continental Congress and original intent, Derek H. Davis attempts to illuminate the founders' intentions on religion and politics by examining the mingling of the two in the activities of the Continental Congress. As the representative institution charged with waging the revolutionary war, the Continental Congress, like Texas football, continuously imported religion into political activities in order to secure and (in their eyes) confirm God's favor in the war against Great Britain. The Congress mingled the two spheres in acts such as declaring national days of Thanksgiving and of fasting and lending support for a national bible. Davis argues that the framers' of the constitution sought a break from the intermingling that characterized the Continental Congress and intended a separation of religion and politics in the administration of American government. Davis's volume details the ways the Continental Congress prepared the ground for that shift. The author illuminates the tensions and paradoxes inherent in liberal constitutionalism, and he shows how "the Constitution was made for a moral and religious people, not to produce them" (p. 198). Eschewing both notions of a "Christian America" and an aggressive secularism, the author concludes that original intent warrants a "loose separation" and "benevolent neutrality" (WALZ v. TAX COMMISSION 1970) that, while respecting certain forms of accommodation, generally requires complete separation between government and religion.

Davis makes four claims (p. xiii): (1) the American Supreme Court should use original intent; (2) examining the activities of the Continental Congress elucidates original intent; (3) original intent is important, but insufficient when the founders manifest disagreement and when there are important social and political developments since the founding era; (4) and the founders' original intent "was to break with history and inaugurate a framework of church-state 'separation' in the new nation, although there are vital reasons today to be sensitive to 'accommodationist' claims and practices" (p. xiv). The author satisfactorily fulfills the second and fourth claims, he devotes only one short and schematic chapter in developing the first claim, and the third claim requires greater elucidation.


The volume is divided into eleven chapters. Chapters 1-3 provide a summary of the original intent argument for

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constitutional interpretation, and provide a summary of the historical and religious background of the American Revolution. Although readers will need to go elsewhere for a more sustained defense of original intent, these chapters serve as an excellent introduction to the general problem of religion and politics during the founding period. Chapter 3 is especially useful in illuminating the connections between the Great Awakening and American nationhood, and in showing how pietists and Enlightenment rationalists found significant common ground to serve as America's cofounders. Chapter 4 provides a summary of politics and religion in the Continental Congress. Chapters 5-9 examine specific episodes in which the Congress handled religious issues: the appointment of legislative and military chaplains, the declaration of days of religious observance, the religious dimensions of the Declaration of Independence, federalism, the national seal and national bible, and Congress's treatment of religious minorities. Chapter 10 examines the founders' view that religion is necessary to cultivate virtue (with some notable exceptions), and Chapter 11 concludes with a summary discussion that applies the findings of the previous discussion to some controversies in modern constitutional adjudication.

Davis argues convincingly that, while the Continental Congress displayed significant religious sentiments in its activities (more than the author had expected to discover), Congress displayed an ambivalent attitude toward religion's relationship with democratic self-government that became more apparent in the Constitutional Convention and in the arguments of the Federalists. He argues that Congress stopped declaring days of fasting after the war, and that the founders' belief in America's millennial mission was tied to their deism, which gave great leeway to human freedom and which undergirds religious liberties. Further, the Congress's activities were in the midpoint of a historical process of disestablishment among the states that began with Roger Williams's disestablishment of Rhode Island and that ended in the 1830s in Massachusetts. For Davis, many of the religious sentiments displayed by the Continental Congress ran counter to the historical trend toward disestablishment and greater religious liberties, although the Congress's own activities ultimately reflected this process.

Despite the prominence of religious sentiments, the Continental Congress moved in the direction of a Madisonian understanding of a separation of religion and politics. For example, the author notes that even though Congress gave support to Robert Aitken's project of publishing an American Bible, it never supplied money for the project. This was also true of the Northwest Ordinance, which called for religious education in the new territories, but which did not require governmental funds to pay for it. Conversely, it appointed a legislative chaplain for itself, as well as military chaplains. Davis argues that appointing chaplains constitutes establishment, and argues that they only persist because the courts have concluded that they are part of America's traditions. Thus, James Madison opposed both legislative and military chaplains. He conceded the strength of arguments for military chaplains, especially for soldiers far from home, but he persisted with his general principle: "that it is safer to trust the consequences of a right principle than reasoning in support of a bad one" (quoted, p. 82). Even so, Madison as president did not remove either legislative or military chaplains while president.

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This is an informative and well-argued book. It constitutes an important advance not only in our understanding of the founders' intent on church-state questions, and it also provides an important theoretical account of the ambivalence toward religion in a liberal order. The author could further clarify the contours of this ambivalence by refining his discussion of the principles that govern the making of exceptions in "extenuating circumstances" (p. 211) to the general rule of separation. The author delineates a few such exceptions such as military and legislative chaplains and generic and nondiscriminatory religious expressions by public figures. However, his discussion leaves the reader wondering whether the author has inadvertently created more separation than he has intended. By taking a "loose separation" account, however, the author reaches the same destination as Madison, but he takes a separate path to reach it. The author refuses to follow Madison's demand to follow strictly the general rule, and instead allows for exceptions of the rule that Madison would have denied if Madison had persisted in demanding logical (and ideological) rigor at the expense of political peace. Even so, Madison did not persist in such logical and ideological rigor, as the author himself admits that Madison "remained flexible on the subject [of establishment], however, proclaiming several days for thanksgiving, reportedly because he found extenuating circumstances in the fact that he was president during the time a war was fought on American soil" (p. 211). The meaning of "extenuating circumstances" is crucial for the author's account because it will inform us of the limits of separation within the jurisprudence. The author generally justifies such exceptions as belonging to longstanding practice and tradition that actually contravene the First Amendment. Relying on tradition, instead of principle, to secure "loose separation" is fraught with danger, especially when traditions are difficult to pin down for justices desirous of establishing a precedent. Madison evidently did not understand himself to be suspending the constitution when he declared these days and when he neglected to remove legislative and military chaplains. He made a POLITICAL judgment to make these exceptions, and the author needs to provide a principled account of this judgment if he wants such a "loose separation" to become part of jurisprudence, which is characterized more by the deductive logic that Madison demanded in general cases (but did not apply in his political reasoning). In other words, how does one translate Madison's political prudence into jurisprudence while respecting constitutional law's demand for uniformity, precise definition, precedent, and deductive, but not political, logic?

Liberalism's own incoherence on this topic helps to explain the difficulty in articulating such principles. Liberal theorists and statesmen have always had difficulty handling what could be considered the points of intersection between politics and religion. Secular jurisprudence rejects their existence, while the more transparent jurisprudence offered by Davis has the more difficult job of articulating that relationship. For instance, Davis notes that legislative prayers, while a form of establishment, "are an acceptable way of acknowledging the transcendent dimension of nationhood" (p. 200). Madison's decision to give into demands for legislative and military chaplains is another example of such an acknowledgment. Indeed, the existence of military chaplains illuminates the difficulty of building too high of a wall between church and state. The military puts demands on soldiers that transcend the specifically political (as Hobbes and Locke recognized when they struggled to determine how a

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liberal state can demand that people die for it). Thus, a refusal by the state to supply military chaplains on First Amendment grounds would be tantamount to declaring the state sufficient to attend to their spiritual needs (assuming that requiring soldiers to supply their own chaplains is impractical). The secularist attempt to cordon off politics completely from religion resulted in the creation of a total state, even though it is done under the auspices of securing political and religious freedoms. The author is prudently sensitive to these points of intersection in his call for a "loose separation," but greater attention is required to articulate a defense of the exceptions to separation on the basis of principle and not simply on tradition.

This inattention leads to another weakness, and to a challenge for legal scholars and political theorists. The author provides an insightful account of the pietistic and Enlightenment philosophy and theology of the founders, and of the Declaration of Independence in particular. However, at one point in the argument, he drops a bombshell by claiming that the Declaration of Independence "mostly represents a ringing statement of political philosophy FROM A PAST AGE" (p. 112, emphasis added). This statement is troubling because it forces the reader to wonder whether the philosophical and theological underpinnings of the Declaration, and of the author's defense of original intent, are based on a truth that no longer holds true. What compelling reason is there for the reader to think that the "political philosophy from a past age" should be one used for today? Is the passing of that political philosophy, one of the "important social and political developments since the founding era that must, in addition to the founders' original intentions, be considered by the Supreme Court in its interpretations of the religion clauses" (p. xiii-xiv)? This issue is pressing in a time when the Constitution is often taken as a vestige of a past age and as a product of an Enlightenment mind whose passing marked the transition into the postmodern era characterized by judges who regard "benevolent neutrality" as hostile to the nonreligious and to atheists who press for total separation of religion and politics.

Nevertheless, this book is an excellent historical and legal study of a topic whose ground, unfortunately, is quickly shifting away from Enlightenment articulations of political order, nature, and the divine. The author does a magnificent job handling the inner tensions in liberal thought on the relationship between politics and religion. This achievement alone makes this book an important contribution. However, as the author's reticence in providing a principled account of "extenuating circumstances," and his hesitation about the truth of the founders' political philosophy, attests, the book also points toward the necessity of finding a new articulation of the ground for religious freedoms. Even so, the author is to be congratulated for a significant contribution to our understanding of the original intent of the founders in particular and of their liberal order in general.

REFERENCES:

SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, 120 S. Ct. 2266 (2000).

WALZ V. TAX COMMISSION 397 U.S. 664 (1970).