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

The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement. The American settlement-perhaps it is only a predilection, as "settlement" suggests a consensus ratified at some formal level-is not one of civic republicanism in which church and state openly and materially support and mutually reinforce one another for the purpose of sustaining the republic. Nor is the American settlement one of a hermetic separation between church and state in which all things religious are kept at arm's length from government, its lawmaking, and other public affairs.20 Rather, the American theory of religious freedom emerged out of the juridical disestablishment occurring at the beginning of the American Revolution and continuing on through the early republic (1774-1833).

Disestablishment was not an abrupt legal development advanced at the national level as a consequence of the Revolution. Nor was it the work of the First Amendment, which bound only the lawmaking authority of the new federal government.21 Rather, disestablishment unfolded more gradually, state by state, and somewhat differently in each state, depending on the state's unique colonial background. In its simplest formulation, the American solution to the church-state problem was to deny to the civil government its prior authority over inherently religious questions, thus leaving such matters within the sole province of the church. Henceforth, politics did not depend on a shared theology. What was crucial in carrying out this reduction in governmental authority were the changes in thought-both American religious thought about the role of government and American social thought about the nature of religion-which soaked into state-level politics and were eventually reflected in each state's constitution.

Important figures and events are considered here for their effect on American culture generally, and the United States Supreme Court in particular. Culturally, the American settlement is fairly depicted as the realization, both within American religion and by political elites, that both church and state benefit from the disestablishment of religion. Vocal figures such as John Locke and James Burgh in England, in addition to Elisha Williams, Isaac Backus, and John Leland in the colonies/states, tirelessly advanced this point until it made a permanent impression. As the idea of locating religion outside the auspices of civil government took hold, state legislatures codified the idea in their constitutions to accommodate their constituents. Drawing from this uniquely American achievement, the modern Supreme Court has sketched the church-state landscape in jurisdictional terms that envision the strong arm of the state as unable to reach those matters properly in the province of organized religion.

Part II of this paper documents the dual-authority pattern that has been a part of European civilization since the fourth century, as well as early Anglo-American church-state arrangements. Part III uncovers the writers and other significant figures that advanced the cause of disestablishment state by state before and after the American constitutional founding. While the Western pattern of dual authorities continued, of course, the American settlement uniquely limited the scope of civil power such that government was no longer competent in matters of doctrine, church governance, and other inherently religious matters. The prime movers in the disestablishment effort were, for the most part, religious people living out their religious understanding of the role of government and the nature of the church. Part IV touches on the modern Supreme Court's incorporation of this church-state settlement into the First Amendment and then identifies a few points that illustrate how both the right and left are attempting to push the Court in directions that would squander this rich heritage of religious freedom. Finally, Part V summarizes matters.