Vol. 21 No. 3 (March, 2011) pp.98-103

RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT, by John Witte, Jr. and Joel Nichols. Philadelphia, Pennsylvania: Westview Press, 2010.  384pp. Paper $42.00 US/ $53.50 CAN.  ISBN: 9780813344751.

Reviewed by Gloria Cox, Dean, Honors College, University of North Texas. Email:  Gloria.Cox [at] unt.edu.

In this fine, scholarly book, the third edition of RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT, authors John Witte, Jr. and Joel A. Nichols construct for the reader an excellent foundation for understanding the religious issues that have captured the attention of Americans since European settlers first came to these shores. Religious issues are complex, of course, and have not only religious, but also sociological, political, philosophical, and economic dimensions. Recognizing the difficulty of getting one’s mind around so large a subject, the authors explain the origins of the prevailing religious views in the United States. It is the best overview of the subject I have ever read, and I am happy to recommend this excellent book to anyone with an interest in the subject. I dare say that Sir Francis Bacon, from whom the authors took inspiration for dealing with an idea “wandering, without any regular system of operations” would be proud of what Witte and Nichols present within these pages (p.xxii).

All students of religious issues in a legal context know that the two religion clauses of the First Amendment are just the beginning, and that understanding these Constitutional guarantees requires knowledge of dozens of important cases that give meaning and substance to the clauses. Once Witte and Nichols lay their foundation, they explain cases across the broad range of topics that have come to define free exercise and establishment. The detail is there, within a context whenever appropriate, making this a book that can serve the serious student of religious issues in America.

Many readers might conclude, as I did, that the first section of the book is the most valuable, as it provides a much-needed but rarely-heard historical foundation for understanding contemporary issues. Witte and Nichols lay at the feet of Constantine the Great the credit or blame, depending on one’s perspective, for unifying government and religion when he made Christianity the official religion of Rome after his own conversion. Their discussions include the effects of having a state religion, Rome’s unsuccessful attempts at religious toleration, and the awful treatment of heretics. The authors briefly explore St. Augustine’s concept of two separate realms, one of man and the other of God, neither of which was to tread on the other’s territory.

The authors go on to explore the rising strength of the Catholic Church and its Popes as the centuries passed, and the resultant dominance of religious over secular power. In 1050, Pope Gregory declared the Catholic Church “to be an independent and superior legal and political authority of Western [*99] Christendom” (p.7), leaving emperors and kings impotent in the face of church power. The result was centuries of conflict between church and state, popes and kings, followed by conflict within Christianity as the Reformation took place. For centuries, the setting was one of corruption within the Catholic Church coupled with civil and religious persecution of heretics, Jews, Muslims, and non-traditional Christians. Readers will want to pay close attention to the authors’ discussion of how the Reformation broke up Christian unity and brought about pluralism. As they note, the Lutheran Reformation territorialized the faith, the Anglican nationalized it, the Anabaptist communalized it, and the Calvinist congregationalized it (pp.10-11).

Their discussion then turns to the New World, revealing the complexity of religious ideas that arrived with settlers as they developed colonies in North America. Religion was important to these individuals and their communities, no doubt about it, but, as a legal issue, it remained below the national level from colonial times until the mid-twentieth century. The developers of the U.S. Constitution were informed about history and the philosophical views of the great thinkers of Western civilization. These men were proud of the document they produced, including the Bill of Rights and its two religious clauses. As Witte and Nichols note, “the American experiment in religious liberty was more a discovery of a natural right than the invention of an American product, and thus it serves universal application” (p.17).

A key element of this book is the authors’ discussion of religious views that emerged from four groups prominent in the colonial era and early days of the Republic: Puritan, Evangelical, Enlightenment, and Civil Republican. In their words, these four views “held up the four corners of a wide canopy of opinion about religious liberty” (p.22). Important values derive from the views of each group. In the relationship between church and state, the Puritans said “each was an instrument of godly authority” (p.23). American Evangelicals had their origins in European Anabaptists, and their views were manifest in America in the Amish, Mennonites, Baptists, and others (p.26). They argued strongly for a wall of separation between church and state, and opposed the requirement of religious oaths and mandatory tithes, and strongly supported allowing conscientious objection to military service (p.26). Conscientious objectors to the Revolutionary War were first protected in 1775, so the idea that many thought new in the Vietnam War era is actually deeply rooted in American thought and law.

The great intellectuals who contributed to American thought, including the Constitution and Bill of Rights, were children of the Enlightenment, and generally favored separation between religion and the state. Their favorite Enlightenment figure, John Locke, favored a wall of separation. We find that view expressed by James Madison, for example, who wrote in 1822 that the best course is “a perfect separation between ecclesiastical and civil matters” (p.31). Finally, the Republican views of the early nineteenth century thought that Christianity was vital for the happiness and prosperity of citizens, and that religion inspired such values as honesty, [*100] patriotism, and public spiritedness (pp.34-35). Witte and Nichols point out that all four groups rejected the concept of an established church that unified religion and government (p.36).

From these four groups and their ideas emerge the basic ideas that have governed religious discussions from the earliest days of the colonial era. These values were liberty of conscience, the free exercise of religion, religious pluralism, religious equality, separation of church and state, and opposition to an established church or religion (p.41). The authors explore each of these concepts separately, providing a discussion that serves to inform the student of religious history and laws as well as the more casual reader. Liberty of conscience, an idea found in many early state constitutions, allowed people to choose their own faith. Free exercise permitted the individual to act on his religious beliefs. Religious pluralism was a fact, not just an idea, and it was viewed as providing a check on any one faith becoming too powerful or dominant. Religious equality meant that all religions were the same before the law, without preference for one over another. The authors make it clear that long before the American Revolution, there existed in the colonies considerable acknowledgement of differences in views, such as laws exempting Quakers and other conscientious objectors from military service. 

The next value, separation of church and state, commands a great deal more interest – and also inspires more conflict – than most of the others, but Witte and Nichols explain that we cannot take credit for inventing it. It is an old concept that can be found in the writings of Enlightenment Scholars and which was very much in evidence among American Evangelical groups such as Baptists. (It was a Baptist Church, of course, to whose congregation Jefferson wrote his now famous letter speaking of a wall of separation.) This value reflects concern that churches need protection from the state, but also that states might need protection from the religious establishment. To that end, some state constitutions contained bans on members of the clergy holding office, a prohibition that was finally lifted in 1978 by a ruling of the Supreme Court

(p.55).

The final value the authors address is opposition to an established religion. Seven states had established religions when the Constitution was drafted, but those went away fairly quickly, after independence, leaving Massachusetts in 1833 as the only state with an established church. Although establishment per se went away, it left a legacy of accommodation for churches by government, including Sunday closing laws, hiring chaplains for legislative bodies, and assisting religious schools. Witte and Nichols argue in Chapter Four that an understanding of the First Amendment is possible only in the context of the four views and the six principles of religious liberty they have discussed.

Although the Declaration of Independence (1776) contained many references to God and the Northwest Ordinance (1787) included a statement on religious liberty, the Constitution as ratified contained only one religion reference, the provision of Article VI that bars religious tests for public office. Witte and Nichols painstakingly analyze [*101] the constitutional debates and those that followed on the Bill of Rights to see what, if anything, turned up to define the meaning of the two clauses that appear in the First Amendment. One thing is clear: the clauses themselves went through many versions before the writers settled on the final language. State constitutions used a variety of phrases, much more detailed and complex than we find in the First Amendment, and evidence of the six principles discussed above are found everywhere in early documents and discussions. The authors say the religion clauses of the U.S. Constitution reflect “the eighteenth century ideal that the new Constitution is a blueprint of government, not a code of governmental conduct” (p.90). They note, however, that only Congress was covered by the First Amendment, and that the phrases are unmistakably orders not suggestions.

The Supreme Court began to nationalize the religious clauses in 1940 in response to actions by the States that encroached on both free exercise of religion and establishment. Religion had been classified a fundamental freedom in the nineteenth century, but in the mid-twentieth century, the Supreme Court decided it was time to step into the fray, and get a grip on state actions, many of which were wading into establishment while at the same time denying free exercise. Perhaps state actions were starting to receive more attention because the release valve of the American frontier was gone, and religious groups no longer had the option of leaving urban areas and heading West as many groups, most notably the Mormons, had done in earlier times.

Witte and Nichols explain the incorporation of both clauses through the Fourteenth Amendment, making them applicable to the States. CANTWELL, which incorporated the free exercise clause in 1940, and EVERSON, which incorporated the establishment clause in 1947, were cases of monumental importance. As the authors explain, “These two landmark cases also restated the eighteenth-century founders’ assumptions that these two First Amendment guarantees together embraced all six of the founding principles of religious liberty” (p.125). They go on to point out that, of the 160 cases about religion that reached the Supreme Court in the 1940s, “fully 80 percent dealt with state and local government issues, and roughly half of the cases found constitutional violations” (p.127).

At this point, the authors begin the process of going through court cases, grouping them for analysis whenever possible. For those familiar with the cases, these chapters are not the most interesting, as they go over often-trod territory. At the same time, it is possible that readers with no background in religion cases might conclude that the authors provide too little information about each case. Including a longer summary of the facts of each case would have created an unmanageable book, however, so those with a greater need to know can easily find out what happened in each of the dozens of cases cited and discussed. The authors do a great deal, though, by providing history on the Church of Latter Day Saints and the refusal of the U.S. Courts to allow Mormons free exercise of religion. They also explore the three levels of scrutiny (rational basis, intermediate or [*102] heightened, and strict scrutiny) and explain how the level of scrutiny applied to a situation often determines the outcome. The authors also note the importance of Jehovah’s Witnesses in bringing many free exercise cases to the Court, and provide information about mandatory flag salutes and the issue’s interesting treatment in the Supreme Court. By way of contrast, most establishment cases have dealt with the place of religion in public schools and the place of government in religious schools (p.170). What is abundantly clear is that courts change over time, not just their personnel, but also their ideas, and cases do not easily fit into predetermined molds.

The conclusions drawn from these long lines of cases concerning each of the Constitutional guarantees about religion are important, especially since the trend in the Supreme Court has been to weaken both guarantees by applying a neutrality test, which essentially asks if the law is neutral in that it treats everyone and all religions the same. If it does, the Supreme Court is likely to find it constitutional. By abolishing any consideration of nuances, the Supreme Court has substantially weakened our national religion guarantees. Justice Frankfurter’s remarks about separation seem at once eloquent and out-of-date in terms of the Supreme Court’s reasoning: “Separation means separation, not something less. Jefferson’s metaphor in describing the relation between Church and State speaks of a ‘wall of separation,’ not of a fine line easily overstepped” (p.193). Suffice it to say that anyone seeking greater understanding of the concepts bearing on the establishment clause can find it in this remarkably comprehensive book.

Noting that “The Court has tended to pit the establishment and free exercise clauses against each other rather than treating them as twin guarantees of religious rights and liberties” (p.263), the authors attempt to place religious guarantees in the United States in the context of international law and guarantees in other nation states. They cite the importance of international norms to rulings by the U. S. Supreme Court that ended imposition of the death penalty for persons who commit murder as juveniles, and also for perpetrators who suffer from mental deficiency. Additionally, the authors conclude that international law may have affected the Court’s ruling overturning state sodomy laws. (This may not be as new a development as the authors suggest, as many believe that the Supreme Court reexamined its validation of flag salutes after just three years, at least in part because World War II was underway and information was coming out about the Holocaust.) Not all members of the Supreme Court would agree with this analysis, as Justice Scalia has labeled such appeals to the world community as “irrelevant” (p.266). The international analysis is interesting, and it suggests that more attention will paid in coming years to where the U.S. stands relative to other nations and international agreements.

This is a truly fine scholarly work that is a pleasure to read despite its density, especially when the authors bring disparate ideas into coherence and provide details that help weave important ideas together. It is a great book to recommend to anyone in need of a basis for understanding the ongoing American debate about religion, law, and public life. [*103]

CASE REFERENCES:

CANTWELL v. CONNECTICUT, 310 U.S. 296 (1940).

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

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© Copyright 2011 by the author, Gloria Cox.