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The Supreme Court and Religion in American Life, Vol. 2

The Supreme Court and Religion in American Life, Vol. 2: From "Higher Law" to "Sectarian Scruples"

James Hitchcock
Series: New Forum Books
Copyright Date: 2004
Pages: 272
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  • Book Info
    The Supreme Court and Religion in American Life, Vol. 2
    Book Description:

    School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing.

    This, the second of two volumes by historian and legal scholar James Hitchcock, offers a complete analysis and interpretation of the Court's historical understanding of religion, explaining the revolutionary change that occurred in the 1940s. InVolume I: The Odyssey of the Religion Clauses(Princeton), Hitchcock provides the first comprehensive survey of the court cases involving the Religion Clauses, including a number that scholars have ignored.

    Here, Hitchcock examines how, in the early history of our country, a strict separation of church and state was sustained through the opinions of Jefferson and Madison, even though their views were those of the minority. Despite the Founding Fathers' ideas, the American polity evolved on the assumption that religion was necessary to a healthy society, and cooperation between religion and government was assumed.

    This view was seldom questioned until the 1940s, notes Hitchcock. Then, with the beginning of the New Deal and the appointment of justices who believed they had the freedom to apply the Constitution in new ways, the judicial climate changed.

    Hitchcock reveals the personal histories of these justices and describes how the nucleus of the Court after World War II was composed of men who were alienated from their own faiths and who looked at religious belief as irrational, divisive, and potentially dangerous, assumptions that became enshrined in the modern jurisprudence of the Religion Clauses. He goes on to offer a fascinating look at how the modern Court continues to grapple with the question of whether traditional religious liberty is to be upheld.

    eISBN: 978-1-4008-2626-1
    Subjects: Law, Religion

Table of Contents

  1. Front Matter
    (pp. [i]-[iv])
  2. Table of Contents
    (pp. [v]-[viii])
  3. Introduction to Volume 2
    (pp. 1-2)

    The first volume of this work sought to establish, by close attention to particular cases, that the Supreme Court’s understanding of the Religion Clauses underwent substantial change over the years, especially after 1940. Volume Two seeks to understand those changes in the context of the continuing dialogue about the role of religion in public life.

    While this volume identifies constitutional and legal issues, its purpose is just as much historical and sociological, less concerned with the technical aspects of Supreme Court jurisprudence than with the Court’s view of the nature of religion and its role in society. The volume approaches...

  4. Chapter One ORIGINAL INTENT
    (pp. 3-21)

    When the first religion case came before the Court in 1815, the justices referred to the Founding Fathers not for constitutional guidance but merely on a legal point, finding that a postrevolutionary Virginia statute had revoked all colonial land grants made to the Anglican Church and placed them under the state, which had then properly and legally sold some of the land to particular congregations.¹ Throughout most of the nineteenth century the Court was far more likely to cite prerevolutionary English cases as precedents than the writings of the Founding Fathers.

    Only in the first of the Mormon polygamy cases...

    (pp. 22-46)

    The separationist philosophy of church-state relations predated the Constitution itself by several years, having been forged in the battle to disestablish the Anglican Church in Virginia at the time of the Revolution.

    The effort at disestablishment, at first unsuccessful, was eventually completed principally through the efforts of James Madison and Thomas Jefferson, during the years 1784–86. By that time the Anglican Church in Virginia was weak and demoralized, and disestablishment was effected through a coalition of “enlightened” Anglicans like Jefferson and Madison and “low-church” Protestants who had suffered at Anglican hands.¹

    But the formal disestablishment of Anglicanism was far...

  6. Chapter Three PILLARS OF A WALL
    (pp. 47-76)

    From its foundational statements inEverson(1947) andMcCollum(1948), the modern Court’s separationist jurisprudence rested on the assertion that strict separationism was the intention of the Framers of the Constitution. However, it also rested on a series of related assumptions—that religion has great potential for stirring up division and strife in society, that it is therefore intended to be a wholly “private” matter, that it has subjective and possibly irrational roots, and that it is often inculcated by means of “indoctrination.”

    TheGirardcase (1844) turned precisely on the divisiveness issue. The exclusion of clergy from teaching in...

    (pp. 77-108)

    The supreme court is the most elite political institution in American life, and what are considered elite religions have accounted for a disproportionate share of its membership. In the period prior to the Civil War, Episcopalians accounted for over half the members of the Court, and Presbyterians 21 percent, the two faiths between them making up almost two-thirds of the Court. By contrast, Baptists and Methodists, the country’s fastest growing churches, achieved only one justice apiece,¹ at a time when the elite churches were rapidly losing ground to newer groups. (The greatest loss was by Congregationalists, who nonetheless placed three...

  8. Chapter Five A FRAGILE WALL
    (pp. 109-132)

    Early in the twenty-first century the future of the Court’s jurisprudence of the Religion Clauses depended on the justices who might be nominated in the future. It was also a time when each of the pillars that had upheld that jurisprudence for over fifty years—that strict separationism was the intention of the Framers of the Constitution, that religion has great potential for stirring up division and strife in society, that it was intended by the Constitution to be a wholly “private” matter, that it has subjective and irrational roots, and that it is inculcated by means of “indoctrination”—were...

    (pp. 133-164)

    The united states was the first liberal state, in that it rested on the twin concepts of self-government and personal liberty, of which separation of church and state was a corollary.

    One account holds that the nation was from the beginning intended as a secular regime, without public religious presence.¹ Thus John Locke, the single greatest intellectual influence on the Founding Fathers, is said to have intended the principle of toleration to exclude religion from significant public effect.²

    Contradicting this understanding is most of the history of the country until after World War II, more than a century and a...

  10. NOTES
    (pp. 165-210)
    (pp. 211-244)
    (pp. 245-246)
    (pp. 247-250)
    (pp. 251-262)
  15. Back Matter
    (pp. 263-263)