Dissent and Disestablishment: The Church-State Settlement in the Early American Republic

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Esbeck, Carl H

After Archbishop Langton returned to England, certain barons revolted against John and prepared for war with the king. The king, now vassal to his overlord the pope, was assisted by a papal legate in his negotiations with the barons. Langton represented the English bishops. The resulting document, Magna, Carta, averted the fighting and is an early monument to political reform and the emerging principle of rule under written law. Agreed to June 15, 1215, on the small island of Runnymede in the Thames near Windsor, John acknowledged that certain enumerated rights were vested in English nobles, in the clergy, and in the church. Magna Carta contains sixty-three numbered clauses, of which the first, sixty-second, and sixty-third clauses, declare "that the English Church shall be free, and shall have her rights entire, and her liberties inviolate," and that all the "ill will, hatreds, and bitterness" of the recent conflict were pardoned.58

While still celebrated as a fountainhead of limited government and due process of law, it is little appreciated that the Great Charter was the direct result of the church intervening to check the pretensions of state absolutism. By all events the Magna Cartel is a codification of the Norman-Anglo-Saxon mind that, along with the medieval papacy, not only differentiated the two spheres of church and of state but also illustrated the utility of church autonomy by enabling the church to mediate between the state and the people.59

2. The English reformation

The 250 years of English history beginning with Henry VIII provide the most relevant backdrop for the founding of the United States of America and formation of the American church-state settlement. During these years two English struggles overshadowed all others and directly shaped developments in the British colonies of the New World: 1 ) the separation of the English Church from that of Rome, and 2) the emergence of Parliamentary supremacy over matters previously within the prerogative of the crown. Neither struggle was about individual liberty as such, but both developments opened up space that later made such liberty possible.

a. The birth of the Church of England. The Reformation came to England in its own distinct way. Early in his reign, Henry VIII (1509-1547) was named Fiaei Defensor (Defender of the Faith) by the pope for severely criticizing Luther's view that Catholics were wrong to hold to seven sacraments.60 Henry later squandered his papal favor due to his preference for a male heir to succeed him to the English throne. At its initial formation in 1534, the Church of England remained thoroughly Catholic, except that Henry displaced the pope as supreme head of the church. That single change, however, untethered the English church from Rome and made possible the doctrinal swing to Reformed Protestantism during Edward VFs (1547-1553) short reign. In 1536, Henry gave permission for the publication of an English-language Bible, which further aided the swing to Protestantism. The wider accessibility to scripture undercut any attempt by the Catholic priesthood to control interpretation of the Bible and its mediation to the laity.