ONE NATION UNDER LAW: AMERICA’S EARLY NATIONAL STRUGGLES TO SEPARATE CHURCH AND STATE, by Mark Douglas McGarvie.  DeKalb, Illinois: Northern Illinois University Press, 2004.  269pp.  Cloth. $38.00.  ISBN: 0-87580-333-4.

Reviewed by Kevin R. den Dulk, Department of Political Science, Grand Valley State University.  Email: dendulkk@gvsu.edu

The most recent skirmish over the phrase “under God” in the U.S. Pledge of Allegiance reflects a much older and deeper conflict in the United States about the role of religion within public institutions.  Is it accurate – and desirable – to suggest, as Justice William O. Douglas famously did in 1952, that “our institutions presuppose a Supreme Being”?  If so, should public institutions acknowledge the presupposition, even to the point of public support of religion?  Or would such support contradict the historical pattern of gradual and deliberate separation of church from state?

Historians and other commentators have had much to say in response to these questions, and the so-called “culture war,” which partly concerns the role of religion in public life, has given the historical arguments a special timeliness and urgency. Mark Douglas McGarvie’s ONE NATION UNDER LAW is a recent addition to this scholarly and cultural debate.  As a history of state-level disestablishment in the early republic, McGarvie’s book offers fresh perspective on the ideological conflict that transformed churches from public-sponsored institutions to private associations within civil society.

How did the transformation from public to private take place?  For McGarvie, the answer does not lie with the Religion Clauses of the First Amendment.  Their chief role was not to separate church from state, but rather to secure religious freedom against the encroachments of the national government.  States remained free to establish religion well after ratification of the First Amendment, and they did so by paying clergy salaries, enforcing Sunday attendance laws, and providing myriad other supports. 

McGarvie insists that the Constitution nevertheless does contain the basis for what became a decades-long process of disestablishing Protestant churches in the states.  He finds that basis in the unlikely place of the “contract clause” in Article 1, section 10, a rare protection against state action that prohibits governmental intrusion into most private agreements expressed in contract form.  While the clause did not target religion per se, McGarvie suggests that it reflected an ascendant liberal ideology that envisioned churches as private voluntary associations or corporations composed of freely contracting individuals.  The contract clause, as McGarvie puts its, “did not separate church and state, but it did endorse a conception of society that made separation inevitable” (p.13).  Just like any other private corporate body, the constitutional logic of the contract clause implies that churches ought not be [*88] subject to the limitation – or support – of government.  Hence the ideological underpinning of the contract clause became the basis for separation of religious institutions from the state.

McGarvie’s claims about the contract clause are part of a broader argument that ideas – not mere social interests, but fundamental ideas of human nature and society – are the key to understanding the eventual triumph of church-state separation.  In particular, liberal republican views that placed high value on individual freedom became the most powerful legal values of the day, crowding out the Christian communitarianism that had been the basis of church establishment before the American Revolution.  In the new republic, religion could operate freely, but “under law.”  Conversely, law would no longer operate “under God.” 

McGarvie devotes the first four chapters of the book to drawing out his argument about ideological conflict.  The first chapter describes the Christian communitarianism of the American colonies – church attendance laws, church taxes, and behavioral codes – that begins to give way as liberal ideas of individual freedom and equality develop before the American Revolution.  It is an effective, well-placed chapter: the rest of the book, after all, is devoted to contrasting this colonial experience to the new liberal ethos. As McGarvie discusses in Chapter 2, the Revolutionary War amplified the liberal individualistic spirit, leading many colonists to see religious distinctions as contrary to the Enlightenment celebration of human capacities and potential.  Chapters 3 and 4 chronicle the continuing ideological conflict during the period of constitutional design and the few decades after ratification.  In this time of the early republic, churches began to lose their special legal status and were subjected to many of the same legal doctrines as other corporate bodies.  The liberal impulse of the Constitution, which protected individual contracts and freedoms, sowed the seeds of church-state separation.  Liberal republicans accepted that religion might have a powerful role to play as a source of morality, but it was a role that religion should only play within civil society and according to the rules governing other voluntary associations.

The final three chapters are specific case studies from New York, South Carolina, and New Hampshire.  New York began its disestablishment of the Anglican Church during the Revolutionary War; enthusiasm for the principles of the war motivated casting off of a church that reminded colonists of the British crown and aristocratic privilege.  South Carolina disestablished its own church for very different reasons, partly out of fear that religious voices within government may turn against the economic arrangement of slavery.  Indeed, McGarvie suggests that South Carolina’s disestablishment was part of a larger effort to weaken state government, thereby protecting the slave-based private economy from governmental encroachment.

McGarvie gives special attention to New Hampshire and the U.S. Supreme Court’s decision in DARTMOUTH COLLEGE, which, according to his version of events, clinched the new regime of church-state separation, not only in the state, but also throughout New England and beyond.  In the case, [*89] Chief Justice John Marshall used the contract clause to protect Dartmouth’s corporate charter from the state government’s threatened alteration. For McGarvie, the upshot of the decision was to reinforce the idea that religious institutions (such as Dartmouth in the early nineteenth century) were essentially private entities under the law and therefore separated from distinctive public purposes.  Readers might be left wondering if McGarvie, who claims DARTMOUTH COLLEGE “privatized religion” (my emphasis), not just the church, and also “secularized and expanded the public realm” (p.188), has ascribed far too much influence to this single case.  Still, his use of the case is illuminating as an example of how contract law reflected the ideological tensions of the day.

The historical narrative in ONE NATION UNDER LAW is replete with oppositions: church and state; liberal republicanism and Christian communalism; private and public.  While these oppositions can be forced and risk masking important nuances, McGarvie uses them well as a way to position characters in his story – a story that rests on the assumption that ideological conflict drove church-state separationism.  I suspect readers of the LAW AND POLITICS BOOK REVIEW will be particularly interested in one of McGarvie’s key oppositions: law versus politics.  As the title of his book implies, McGarvie suggests that church-state separationism in the early republic developed “under law”—that is, within a legal framework that reflected the prevailing liberal republican values of the day.  Politics, which McGarvie associates with competition over social interests, “was subordinated to law” (p.13).   While political scientists and other scholars will question the neat distinction between “ideas” and “interests” that seems to underlie McGarvie’s discussion of law and politics, his treatment of these distinctions is generally clear, well-sourced, and worth exploring as a case study of law and ideological conflict .

CASE REFERENCES:

DARTMOUTH COLLEGE v. WOODWARD, 17 US 518 (1819).

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© Copyright 2005 by the author, Kevin R. den Dulk.