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

II. THE DUAL-AUTHORITY PATTERN CHARACTERISTIC OF THE WEST

A. The American Settlement

By way of brief overview,22 disestablishment in America happened over a fifty- to sixty-year period. All the early European models (and there were several) assumed that the ultimate unity of the nation-state, hence its survival, required a union of its subjects or citizens around one religion.23 Thus the coercive power of the state, its purse, and its other considerable resources were put behind one church or one religion. Colonial America shared this assumption, albeit in milder and abridged forms, as the American colonies initially absorbed various European patterns of church-state relations. Over time these models evolved and adjusted, differently from colony to colony, to their New World setting.

During the War of Independence, the ensuing Confederation, and then early republic (the period from 1774 to the 1830s), relations between church and state underwent a marked shift toward a new and decidedly non-European approach. In decline was the conventional argument that material government support for religion and religious institutions was necessary to ensure religion's salutary effect on public morality and civic virtue. Such virtue was surely thought to facilitate representative government and thus was of vital interest to an extended republic, republican government at the time being an experiment. Americans did not waiver on the proposition that a government by the people requires citizens who are prepared to take personal responsibility for the common good. Thus, the nation continued to expect religion to influence the polis significantly, with citizens capable of self-governance in turn carrying their personal values into collective politics and other public affairs.

In the early national period, religious voluntaryism24 was on the ascendance. Church membership was soaring in the populist, nonhierarchical churches often staffed by clergy without formal credentials. These churches embodied a more accessible and personal religion, often planted by revivals and circuit riders. American religion was undergoing a major transformation, one abandoning many remaining vestiges of the European Reformation past and moving on toward norms shaped by an altogether new American ethos that was caught up in individualism, progress, and frontier expansion. Under those influences, then, and factors such as the leveling of social classes in society and the disintegration wrought by large-scale immigration, the American theory of religious freedom pushed for the decoupling of formal ties between religious institutions and government institutions. To use a more modern descriptor, the church and its ecclesiastical affairs were deregulated.25 Henceforth, the civil state had no legal authority, and its courts thus had no subject matter jurisdiction over those topics that were inherently religious and thus within the sole province of the church. Faith, if it was to be genuine, was acquired as a voluntary act, without Caesar's aid. Caesar was to twice refrain, neither interfering with nor materially supporting the gospel work of the churches.26 In a phrase, the new American settlement envisioned a free church and a limited state.