A Nation Dedicated to Religious Liberty

A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses

Arlin M. Adams
Charles J. Emmerich
FOREWORD BY WARREN E. BURGER
Copyright Date: 1990
Pages: 188
https://www.jstor.org/stable/j.ctt130jv78
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  • Book Info
    A Nation Dedicated to Religious Liberty
    Book Description:

    Here is a concise overview of the historical development and judicial interpretation of the First Amendment religion clauses. It begins with a survey of the history of American religious liberty, goes on to present the views of the Founding Fathers, and then considers the core value of religious liberty and the constitutional purposes that implement that value.

    the book ends on a practical note by applying these principles to questions of equal access, religious symbolism in public life, and the task of defining religion for constitutional purposes. As the authors note in their introduction, "the historical principles that animate the religion clauses are more than an abstract intellectual exercise. . . . They provide an essential context for guiding the resolution of modern religious liberty issues."

    eISBN: 978-0-8122-9232-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xii)
  3. Foreword
    (pp. xiii-xiv)
    Warren E. Burger

    Some extremists see the risk of an “established” or “state” church looming up when any state action benefits one or all religions. This view rests on Jefferson’s “wall of separation,” which is sometimes a useful methaphor to create the image of a separate church and state but which is hardly part of orderly legal analysis. A literal “wall of separation” is surely not what the draftsmen of the religion clauses had in mind in 1789; to the contrary, they recognized, as have many decisions of the Supreme Court over the past 200 years, that no perfect or absolute separation is...

  4. Acknowledgments
    (pp. xv-xvi)
  5. Introduction
    (pp. 1-2)

    Recognizing that an examination of history can be hazardous as well as fruitful, we will address the historical meaning of a constitutional provision that represents one of America’s great contributions to Western civilization.¹ The First Amendment of the United States Constitution declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”² This provision, known as the religion clauses, contains two prohibitions against Congress: the first is referred to as the establishment clause, the second as the free exercise clause. The sixteen words of the clauses, so simple yet capable of...

  6. 1. The Historical Roots of American Religious Liberty
    (pp. 3-20)

    The American Founders were influenced greatly by theologians and philosophers who reflected on the religious conflicts that occurred in the wake of the Reformation. From Martin Luther and John Calvin they inherited the view that God had instituted “two kingdoms”—a heavenly one where the church exercised spiritual authority and an earthly one where the civil magistrates exercised temporal authority.¹ A liberal Roman Catholic tradition represented by Erasmus and Thomas More also exerted influence in the colonies, inspiring the Lords Baltimore and the Carrolls of Maryland to rethink the proper relationship between church and state. InUtopia, first published in...

  7. 2. The Founders on Religious Liberty
    (pp. 21-31)

    In deciding religious liberty issues, the Supreme Court has often referred to the views of the Founding Fathers as expressed in the legislative history of the religion clauses, official acts, proclamations, speeches, and correspondence.¹ Although difficult to define exactly, the term “Founding Fathers” commonly refers to the leaders who forged the nation.² It frequently is reserved for those who participated in promulgating one or more of three documents: the Declaration of Independence, the Constitution, and the Bill of Rights. Such criteria, while providing helpful guidance, should

    not be considered all-inclusive. Jefferson, John Adams, and Samuel Adams made substantial contributions during...

  8. 3. The Supreme Court and Religious Liberty
    (pp. 32-42)

    After examining the growth of American religious liberty, the framing of the religion clauses, and the views of the Founders, it is appropriate to ask what guidance history affords in construing these provisions. More fundamentally, how useful is history in resolving current issues pertaining to church and state? What values and principles does the American heritage yield to guide modern courts in this area? In addressing these questions, this chapter will discuss the emergence of the Supreme Court as an important institution in determining the relationship between church and state and the Court’s resort to history in adjudicating religious freedom...

  9. 4. The Animating Principles of the Religion Clauses
    (pp. 43-73)

    Chapter 3 examined the incorporation doctrine and the Supreme Court’s emergence in the last half-century as a key institution in directing the interaction of religion and government in American society. After discussing the use of history by theEversonCourt, it was proposed that the core value of the religion clauses is religious liberty and that the Court’s rigid dichotomy between nonestablishment and free exercise has generated doctrinal tension and inconsistent precedent. In criticizing this dichotomy, it is not suggested that the clauses are coextensive and lack independent vitality. The Framers made a textual distinction between the two, and history...

  10. 5. Religious Liberty in Contemporary America
    (pp. 74-93)

    Since their incorporation through the Fourteenth Amendment, the religion clauses have been widely applied. On the social landscape, the activities of government have increased dramatically with the rise of the welfare state, creating myriad points of contact between government and religious organizations and citizens. Recent cases illustrate the increasing interaction of religion and government. Courts have grappled, for example, with such sensitive issues as the scope of the clergy-penitent privilege;¹ the permissibility of tort actions against churches for administering discipline or for alleged “clergy malpractice;”² the assertions of parents that public school textbooks unconstitutionally advance the religion of secular humanism;³...

  11. Conclusion
    (pp. 94-96)

    Studying the history of law and ideas, as Sir Frederic Maitland admonished, is a difficult task.¹ It is a necessary task, however, for history provides an essential framework for resolving contemporary religious freedom issues. Those in the legal profession must look to the traditions and values of the American people as more than vague generalities to introduce the resolution of difficult cases. In order for the judiciary to use history properly, however, it is necessary for historians to take a more active role in addressing the historical aspects of emerging legal issues.

    The Founders drew on rich and diverse ideas...

  12. Appendix One Historical Documents on American Religious Liberty
    (pp. 97-114)
  13. Appendix Two Early Declarations and Constitutional Provisions on Religion
    (pp. 115-121)
  14. Appendix Three Leading Supreme Court Decisions on Religious Liberty
    (pp. 122-125)
  15. Notes
    (pp. 126-160)
  16. Bibliography
    (pp. 161-163)
  17. Index
    (pp. 164-172)