Hickman on Sehat, THE MYTH OF AMERICAN RELIGIOUS FREEDOM (Roundtable, Part IV)

Dear Readers: This guest post by Christopher Hickman is the fourth and penultimate addition to the roundtable dedicated to our colleague David Sehat’s The Myth of American Religious Freedom. The final addition should come next week in the form of David’s response. If you wish to get caught up to speed, here are links to the first three contributions, by: Daniel Williams, Andrew Hartman, Ray Haberski

Christopher Hickman has a Ph.D. in history from the George Washington University and is working to convert his dissertation, “The Most Dangerous Branch: The Supreme Court and Its Critics in the Warren Court Era,” into a book.

At the end of the 1991 Supreme Court term, a divided Court issued an opinion in Lee v. Weisman. Justices Kennedy and O’Connor—ever the votes that mattered in many of these high-profile cases during their tenures—joined the Court’s liberals (Blackmun, Souter and Stevens) in invalidating a public school practice of mandating prayer at the end-of-year commencement ceremony. The flashpoint issue of religion in public schools had appeared just in time for the 1992 presidential election. Months after the pronouncement of Lee, both Patrick Buchanan and George H.W. Bush made sure, from the GOP Convention podium no less, to remind Americans that the Republican Party remained committed to a restoration of prayer in public schools. Precisely how the GOP would accomplish this or what energy would be expended to bring this about scarcely mattered. What did matter was the mere reminder that one political party stood up for the rhetorical restoration of God and morality to the public sphere. An issue that had festered since at least the seminal Engel v. Vitale and Abington v. Schempp decisions, of 1962 and 1963 respectively, had once again received a boost from a Court ruling that had, apparently at least, re-confirmed the country’s constitutional commitment to secularized public schooling.

Concurrent to these developments, my own youthful awareness of the country’s political and legal developments remained scattered at best. Lee, however, had come to my attention; I had, from an even earlier age, always taken notice of the persistent inclusion of Christian activities and messages in what I could only presume represented a typical public school incapable of operating as a nearly secular school. Nearly a year after the Lee ruling, my own high school graduation ceremony featured a prayer led by a local leader of a Christian congregation. While nine jurists, their law clerks, the ACLU, and other noticeable legal system actors busied themselves determining what the Constitution required, some Americans persisted in making their own law.

David Sehat’s aggressively argued The Myth of American Religious Freedom constantly brought me back not only to this personal episode of a community’s non-compliance with a High Court ruling but also to my own work on the Warren Court and its many, often diverse, critics. His cogent, book-length analysis of a persistent, though often obscured, Christian establishmentarianism across American history might not appear in gift bags at next year’s GOP convention, but it represents primary source-based analysis of the American past at its most ambitious.

Sehat has charted a course from colonial America to the present. Generally speaking, his arguments about the continuities of an American establishmentarianism across the country’s history are on target, particularly so when he focuses developments of the 18th and 19th centuries. In colonial America, of the thirteen colonies, only Rhode Island, Delaware, New Jersey and Pennsylvania lacked formal, established religion. Whatever diversity existed among the colonies (and from region to region), colonial and Revolutionary era America featured an obvious fusion of church and state power. Such arrangements were not without controversy. Paying for the salaries of ministers or for the general expenses of Congregationalist churches in Massachusetts, for instance, undoubtedly bothered dissenting denizens of that colony. Yet, even to label Massachusetts a colony of strict establishmentarianism would be incorrect. During the 18th century it flirted with legal exceptions for Quakers and Baptists before actually diversifying its establishment into one that would allow for some measure of local control so that other Christian sects could also benefit from the public purse. Nonetheless, this was a Protestant establishmentarianism all the same.

Elsewhere, the Anglican establishment in the southern colonies gave way in the years after the Revolution, but a lack of establishment, seen against most notably through using tax revenues to provide for churches, scarcely meant separation. As Sehat notes, even in an era of putative disestablishment a Janus-faced quality existed in numerous state constitutions, such as North Carolina’s that included a de jure Protestant loyalty oath for civic officeholders. It was, after all, no surprise that both James Madison’s Memorial and Remonstrance (a document Sehat labels “a watershed in political thought”) and Thomas Jefferson’s Danbury Letter contributions to the church-state separation ideal sprung from events in Virginia and Connecticut respectively. One might even say that the church-state problem was one of the original, indeed one of the most perennial, national problems.

Up to the present, while the US lacks the formal establishment of religion, it persistently features the infusion of matters spiritual (and decisively moral) into the public sphere. One of the more notable merits of Sehat’s work is precisely that he covers over 200 years of American history. In covering the whole of American history, he focuses upon the coercive power of a “moral establishment,” all while most Americans, if not some scholars, cheerfully have accepted the dogmas of a country that has somehow managed to protect the religious liberties of non-Christians and concurrently avoid the fusion of church and state. Even if his reliance upon exposing the fables of the country’s history is somewhat ill-fitting, particularly for scholars of American politics and the law, for the entirety of the American experience, it is apparent that Sehat has thought about an essential American experience. Along side such analytic ambitions of covering what amounts to an American version of the longue durée, Sehat also has securely placed the history of ideas about church and state securely within the social, political and legal sources that have made these ideas contestable. For thinking in such grand terms, and in providing a first-rate intellectual history, he deserves our praise.

Sehat focuses on the initial debates over church-state separation in the 1770s and 1780s and thereafter when a host of what he terms “religious partisans” began to push back against a United States Constitution at once insufficiently Christian and insufficiently powerful to curb Protestant Christianity. Heroes for that cause of religious liberty and disestablishment, Thomas Jefferson and James Madison, failed for the most part, particularly since the First Amendment only applied to actions of the federal government. Madison emerges in this text as the true hero for the cause of disestablishment and the protection of individual belief; Sehat, however, argues that the welter of voices involved with making the Constitution should lead us to judge Madison, in particular, kindly. Even the limited applicability of the First Amendment, in Sehat’s reading, “might have been the best Madison could do.”

As much as Sehat venerates the bookish Madison for his “brilliance,” contributions to political thinking about liberty and near steadfast opposition to establishment of all types, some readers might wish that Sehat would have engaged Madison differently. The man who later became Thomas Jefferson’s Secretary of State and a war-time president, Madison earns Sehat’s designation as an unrepentant nationalist and a proponent of an aggressive government to protect liberty. Be that as it may, Madison’s ideas in Federalist #10 and his call for an expanded government to protect liberty should be situated next to the Virginia Resolution of 1798 and the Jeffersonians with whom Madison found favor. Moreover, one will search in vain to find Sehat in conversation with any serious scholars of Madison, either as political theorist, American statesman or American president. The second chapter of the The Myth of Religious Freedom superbly engages Madison’s own activities at the Constitutional Convention and the split that develops with Jefferson over the necessity of a Bill of Rights. Perhaps to break up this engagement would intrude upon Sehat’s chosen narrative, but even to banish Jack Rakove or Gordon Wood to the footnotes would have seemed most appropriate given the ink Sehat spills in situating Madison as hero and proponent of a strong government to help ensure that the majorities did not trample liberties.

Even though the First Amendment did not curtail the opportunities for these “religious partisans” to influence law, policy and politics in the early Republic, numerous states brought about formal disestablishment in the late 18th and early 19th centuries. But rather than claim these developments as losses for all of the “religious partisans,” Sehat contends that evangelical groups could endorse these changes as they often sought a different victory. Their victory involved attempts to restrain anarchy, individualism and democracy via a quasi-institutional establishment of enforcing morals. These evangelicals found secular allies who hoped to scale back or eliminate the institutional and even ceremonial establishments of the past, curtail the influences and threats of Catholicism, and fashion what amounted to a “moral establishment.” Within this milieu, Sehat, contends: “Protestant Christian moral norms needed the force of law because, proponents claimed, in the absence of Christian moral enforcement the nation would devolve into anarchy, licentiousness, and ultimate ruin.” Under cover of restraining the excesses of democracy and individualism, early 19th century Protestantism entrenched itself not through direct withdrawals from the public purse but through widespread social control. These efforts of social control thus colored much of the reform activities involving closing laws, temperance and a spate of other issues in antebellum America. (The concerns about Madison I voiced earlier seemed captious when I realized how splendidly Sehat engages Ronald Walters, who I recall almost glibly dismissing the idea of social control as an overwhelming factor in explaining the antebellum reform movements in his American Reformers 1815-1860. His underwhelming conclusion that 19th century abolitionists were more like other 19th century Americans than they were mid-20th century civil rights partisans still does not pass the gee whiz test.)

Protestant Christianity thus managed to maintain its hold not only over the coercive powers carried by those who managed the discourses of sin and redemption but also over the coercive power of the presumably secular governments. Thus, well before C. Wright Mills attacked the “interlocking directorate” of elite power in military, corporate and political circles, the 19th century featured the emergence of social control forces that once denuded, Sehat contends, revealed a Protestant establishment all the same. Again however, as with James Madison, there might be a case of Sehat engaging with evidence and prior analysis that best fits his construction of this moral empire. One might wonder if Sehat has perhaps made the “moral establishment” too important—a point that Andrew Hartman makes, albeit differently. Does Sehat then perhaps stretch the moral establishment to cover more than it should?

For instance, one might consider the crime of blasphemy. Sehat certainly does; I could hardly forget that he grants this crime importance precisely because he referenced it not only in his text but also last year in his presentation at the USIH conference. I had hoped for more of a quantitative reckoning on the crime of blasphemy. Stuart Banner’s “Was Christianity Part of the Common Law” from the Spring 1988 Law and History Review contended that 19th century prosecutions for blasphemy were rare. Sehat, as far as I could tell, does not engage this question. I readily admit not knowing how common prosecutions for blasphemy happened to be, and fully recognize that the mere threat of prosecution and leaving such laws on the books, confirms the sectarian influences on criminal law. In citing cases, such as the 1811 Ruggles decision from New York, Sehat gets us to think about how a process of obfuscation began. Judges throughout the 19th century would hide behind invocations of order, probity and tradition to justify using state power to enforce sectarian rules. Again, however, Sehat can be right about the intellectual dishonesty of these juridical authorities, but the indictment can go too far. As he very well knows the conceptions of secularism have hardly remained constant or well-defined throughout American history. 19th century jurists responsible for helping to construct the “moral establishment” deserve scorn for intellectual hoodwinking; but, there is some tension here that Sehat could resolve by giving us greater context about the prevalence of these prosecutions.

In thinking then about the sources of American legal codes, and in no small part because of Sehat’s efforts of myth destruction, Sehat’s tome reminded me of William Novak’s superb The People’s Welfare: Law and Regulation in 19th Century America. Novak also set out to overturn prevailing myths, civic or otherwise. In his book he challenges the notorious notion that statelessness and a lack of government regulation had somehow served as a cornerstone of the American experience prior to the onslaught of agencies, experts and regulations of the Progressive era and later the New Deal. Novak, however, gets us to consider that a much wider array of sources explained laws and regulations. While often local in origin, laws drew upon and influenced safety, the economy, health and—as Sehat would certainly agree—morals. In sum, Novak’s work though points in a far more diverse direction for the purposes and effects of laws. In concert with the older Hurstian conceptions of 19th century law and legal actions, particularly as they evolved across the century, as mostly concerned with economic exchange, Novak’s idea of the well-regulated society does not disavow a “moral establishment,” it just makes it less overwhelming. None of this is to say that Sehat’s “moral establishment” did not influence, if not even direct, the creation and operation of an evolving American legal system; nonetheless, perhaps its significance had exceedingly important rivals.

Closer to the present, Sehat provides a more Supreme Court-centric narrative. Brave dissenters such as Edward and Ellory Schempp and organizations such as the ACLU and Americans United for Separation of Church and State have participated in legal action that has challenged the Supreme Court to undermine some of the obvious signs of formal establishment and even elements of the still viable “moral establishment.” (Lest we forget, and Sehat makes sure to prevent such forgetfulness, Lawrence v. Texas, which struck down sodomy laws, came down eight years ago.) Jurisprudential developments involving the contributions of Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, later justices of the Warren Court and the turn away from legal disputes of involving economic regulations to those involving individual liberties have provided a persistent counter-force to the attempts at establishment perpetuation. I could not help thinking that Sehat gets it; clearly he realizes the vast significance of the Court as that venue in which this country only tries to solve issues that it cannot settle otherwise. Among the many things de Tocqueville got right about the United States in the Jacksonian era, he was both accurate and prescient about the role of lawyers and the courts. Despite their dismay over unpopular high-profile rulings, Americans somehow persist in expecting many of the most vital problems to find some measure of resolution by the Supreme Court. Yet the Court’s actions are not self-enforcing. Americans, from elected officials to those involved with Parent-Teacher Associations, have an instrumental role in determining the pace at which Court rulings earn assent.

Yet, there remains one of the more paradoxical developments of what many, Sehat included, would consider a laudable jurisprudential turn. Since the 1940s, and in particular from the time of the truly liberal Warren Court of the 1960s, a host of developments have occurred that have curbed some of the excesses of the persistent church-state establishment. Engel v. Vitale and Abington v. Schempp represent merely two of the most well-known in a list of cases to which we could certainly add others. Even ostensibly conservative Courts, such as those under Warren Burger and William Rehnquist, have reached decisions that have turned aside church-state fusion. (For example, consider the 1971 ruling in Lemon v. Kurtzman, which nevertheless bequeathed the truly unworkable Lemon test; Lee v. Weisman, which I highlighted earlier; and the 2000 ruling in Santa Fe Independent School District v. Doe.) Yet, many of these decisions have forced thoughtful partisans of disestablishment, let alone thoughtful critics of the Court’s excessive involvement in all things, to lament what might be favorably called historical malpractice committed by jurists. Well before even the Warren Court made its contributions, decisions in Everson v. Board of Education and McCollum v. Board of Education involved notable evasions necessary to create an American past that had somehow had far less establishment and far more freedom. Sehat notes all of this as one more problematical element of the apparent liberal triumphs. In writing about Torasco v. Watkins, a 1961 ruling that continued the practice of disavowing religious tests for civic office-holders, Sehat laments that the ruling “followed the earlier pattern of intellectually evasive and historically misinformed reasoning.” Torasco and presumably others that would follow, such as Engel and Abington, featured a Court that “continued to draw upon a false history to support its opinions.” Sehat puts it well when he contends: “Oddly, the Court’s invocation of an exceptional history of freedom masked its actual expansion of rights and left unexplained why, given this history of freedom, the Court’s actions were needed in the first place.” He is correct to lament all of this.

The claim about the intellectual weakness and poor historical work of many of these decisions is an old standard. For instance, a host of the Warren Court’s responsible, quiet and non-polemical critics, particularly those in the legal academy and even some in the wider world of political opinion, offered similar animadversions. Alexander Bickel and a host of other responsible contemporary Warren Court-watchers offered the same criticisms about the disrespect for the historical record. Bickel though offered a plausible, if not hopelessly counterfactual, suggestion of paths not taken. He was aware that secularism might not have had the force of law at its disposal but did have countless non-legal influences that had come down against the continuation of these religious-state entanglements. In short, legal decisions, while a necessary evil, would be hard-pressed to bring about the actual changes that secularists desired. Ultimately, however, the problem lingers as to the options the jurists had. In relying upon and relaying to the public the difficult, non-conclusive historical record on segregated schooling, the Court helped convince none of its opponents of the correctness of its rulings in Brown v. Board of Education and its progeny. And the Warren Court’s failing grades for history have no rulings, First Amendment decisions included, that rival those of its apportionment decisions in Baker v. Carr and Reynolds v. Sims. Be that as it may, in the Warren Court-centric world that culture warriors still reside, proposals to restore prayer in public schools will persist. Home-schooling and private, religious-based options have only thrived over the past few decades. Nonetheless, failing grades for judicial opinions have hardly determined the extent to which Americans have still made attempts to live up to or get around seemingly settled law.

As a coda of sorts: I attended the graduation of a family member just this past Sunday afternoon. The ceremonies took place in a new school building lucky enough to be constructed before the economic downturn has now made public teachers a veritable enemy in Ohio. The building was new but the school district—not to mention many of the administrators, teachers and families—was the same one from which I had graduated seventeen years before. I noticed little consternation on behalf of those in attendance when, not to my surprise at least, the graduation ceremony involved a prayer led by a local pastor. Apparently some Americans continue to make their own law.