Secularization, Pluralism, and Moral Minimalism: A Response to Williams, Hartman, Haberski, and Hickman (Roundtable Part V)

David Sehat

I am grateful to Daniel K. Williams, Andrew Hartman, Ray Haberski, and Christopher Hickman for their careful readings and their generous evaluations of my book. They have largely captured my argument and, though I have a few points of disagreement, a point-by-point engagement would be both tedious and ungenerous to their efforts. Instead, let me explain how I approached this book, which might capture and clarify to what extent we agree or disagree.

As I see it, my book turns on three somewhat abstract but important concepts: secularization, pluralism, and moral minimalism. Each involves complicated theoretical and normative positions. Since I was aiming at the general reader (that mythical beast), I didn’t want to burden the text with a full elaboration of these concepts. But after reading these responses to the book, it now seems to me that more remains to be said.

1. Secularization

Williams chides me for what he sees as a persistent tendency to seek out “a secular basis for the expansion of rights” by neglecting the role of religious people, particularly religious liberals. And it is true that The Myth of American Religious Freedom is a history of secularization. But I do not mean secularization quite the way that Williams suggests, so let me be clear about my understanding of the term.

Over the last few decades, secularization theory seemed dead at times. After all, at its base secularization seemed to require the decline of religion and, love it or hate it: we all know that religion is alive and well. But more recently, historical and theoretical sociologists have been refining and reformulating the notion of secularization. Though there are many perceptive writers that I might have drawn upon, in this book I relied upon the work of the sociologist Mark Chaves.

Chaves argues that secularization involves two distinct processes. The first is the differentiation of religion from other institutional structures such as government, education, or business. This differentiation of institutional structures is a mark of modernity. In other words, whereas in past ages governmental, religious, and business authorities might have been connected or combined in the king or prince or pope, modernity entails the division and separation of these various structures. Secularization then occurs as religious authority declines in scope, that is, as religious authority becomes increasingly confined into its own institutional sphere with less relevance for other institutional spheres. The key issue in this version of secularization theory is religious authority. Though many, many people may continue to believe or to practice various religious traditions, this fact is not relevant to the process of secularization, according to Chaves. By focusing on the scope and intensity of religious authority, Chaves offers a theory of secularization that focuses our attention not on the prevalence of individual belief but on the social significance of religion.[i]

Those who have read The Myth of American Religious Freedom will know that the issue of religious authority is a major theme of the book. Religious partisans have long argued that their religion provides the morals to be enforced in law. Another way of saying it is that religious partisans made their religious authority determinative in law and government, sometimes explicitly, sometimes less so. The success of religious partisans in imposing their religious authority on law resulted in a moral establishment, a proxy religious establishment that provided religious authority with the coercive powers of law.

My book focuses on the role of dissenters to the moral establishment—those who objected to the reach of religious authority into law and government. Dissenters were central to the decline of the moral establishment and the secularization of American public life, a secularization that, I must add, is tenuous and seems, in the last several decades, to be moving into reverse. And it is this understanding of secularization that apparently did not come across as clearly as I wished. Williams, for example, thinks that I depict religious liberals as people “who quickly realized that their arguments did not depend upon religious faith and who therefore embraced secular language in advancing human rights.”

But this is not quite what I say, or at least what I intended to say. I sought to say something at once more specific and also stronger: Religious liberals, precisely because of their religious beliefs, were agents of secularization, a secularization that involved the expansion of rights because it meant the decline of religious authority outside the sphere of religious institutions. In making this argument, I think I am being true to liberal theology. Religious liberalism, especially in the nineteenth century but also in the twentieth century, involved a belief in the immanence of God in human history. To religious liberals, God was so present in human affairs that history involved the progressive and inexorable working out of his will for the glorious culmination of his millennial rule.

As a result, there was no basis for a transcendent, prophetic religious voice in religious liberalism. The practical obliteration of any distinction between the sacred and the profane, with the profane all but swallowing up any independent religious authority, meant that religious liberalism followed the currents of the age that others put in motion. As the late-nineteenth century religious liberal Theodore Munger put it in his widely regarded manifesto of religious liberalism, The Freedom of Faith, religious liberalism “allies itself with the thought of the present age.” This alliance, according to Munger, provided the basis for liberal theology’s distinctive character relative to other religious traditions: “Hence its ethical emphasis; hence its readiness to ally itself with all movements for bettering the condition of mankind,—holding that human society itself is to be redeemed, and that the world itself, in its corporate capacity, is being reconciled to God; hence also an apparently secular tone, which is, however, but a widening of the field of the divine and spiritual.”[ii]

That last sentence precisely shows the absolute loss of any distinctive religious authority in religious liberalism. I’m sure Munger would have preferred to see religious liberalism as so successful that it diffused liberal Protestant ideals into the wider culture. This was how John Dewey saw religious liberalism, which explains why Dewey viewed churches as relics of a once distinctive religious voice that were, by Dewey’s time, holding back the emergence of a truly religious society. But I view the process, instead, as the collapse of a distinctive religious voice, as those from the outside of the tradition pressed claims upon religious liberals that religious liberals accepted for reasons within their own tradition. The effect is the same. The advance of religious liberalism meant the decline of religious authority in other arenas of society, precisely because religious liberalism aligned itself with the thought of the age. So profoundly did religious liberalism blur any distinction between religious and secular, so complete was the loss of any basis for religious authority without relying on another source, that Will Herberg, when considering the American religious establishment at its liberal apex in 1955, would marvel at “this secularism of a religious people, this religiousness in a secularist framework.”[iii]

2. Pluralism

This brings me to my second point. The debate that I try to illuminate is not ultimately one between Christians and secularists. It is, rather, a debate between establishmentarians and pluralists—that is, between those who seek the use of law to advance their sectarian religious vision and those who seek the use of law to create a social and political framework capacious enough that many different types of people would be able to live unmolested under the same law.

That divide explains my treatment of the civil rights movement, which Williams sees as downplaying the movement’s religious component. But of course the civil rights movement had a religious component, and I did not try to suggest otherwise. In fact, I went out of my way in the brief space that I devoted to Martin Luther King Jr. to pick one of his most theological texts: his 1963 Letter from a Birmingham Jail, which he addressed to white, Christian ministers. My point about King was not to try to make him into a secularist. It was to show King as a pluralist. That is exactly why the civil rights movement was successful. Its appeals to justice were capacious enough to include the support of conservative Jews, liberal Catholics and Protestants, and secular activists (including, most prominently, secular Jews). But the pluralism of the civil rights movement—as well as its offshoots in the other social movements of the later 1960s and 1970s—is exactly what made the 1960s into a secularizing period. Pluralism necessarily means the destabilizing of a single religious authority in law, which has the ultimate effect of an absolute decline of religious authority in law since religious authorities conflict.

This divide between pluralists and establishmentarians is the fundamental intellectual divide of the book, so it is not surprising that my other reviewers train their criticisms on it as well. Andrew Hartman and Christopher Hickman complain, in slightly different ways, that I make too much of the divide and so both overstate its relevance and, in the process, overstate the argument’s claims of originality. I think this, too, misreads the book. As I maintained in my introduction, “There are always many who occupy a middle space, or who remain aloof from any divide, having altogether different concerns and different conceptions” (pp. 9-10). My point was not to stretch the history of this divide to cover everything in American history, but to reveal a previously unappreciated tension that has existed for all of American history. And by connecting the debate between pluralists and establishmentarians with other debates over slavery, women’s rights, or labor, I sought to show that these debates featured not merely disagreements over particular issues but disagreements over divergent political philosophies. This focus on political philosophy is what Hartman especially misses. His contention that slaveholders' invocation God in support of their social arrangements was merely an “opportunistic cover for slave power” seems not only unprovable but also beside the point. When we move beyond the specific debates to the wider political philosophies that they entail, the divide between the pluralists and the establishmentarians asserts itself as part of, if not fundamental to, these wider debates over political philosophy that were taking place around slavery, women’s rights, and the rights of labor in an ordered society.

3. Moral Minimalism

Ultimately, though, pluralism is not in itself a workable political philosophy because it does not explain how these different groups are supposed to be connected in a single polity. So, too, individualism, which could be said to be the most extreme form of pluralism, leads only toward the utopias of anarchism. We need something else. I am, as Hartman points out, in deep sympathy with the early twentieth-century liberal thinkers such as Croly and Lippmann. But their vision of progress was, alas, naive and proved too technocratic, too reliant on a bureaucracy of experts, and too utopian in the aftermath of World War I.

This leads me, at the very end of the book, to Michael Walzer’s idea of moral minimalism. The fact is that we do owe other members of our society something. We are not little islands. Walzer lays down some helpful distinctions as we think through our obligations. In Walzer’s explanation, moral ideas are ordinarily embedded in thickly contextualized moral outlooks that remain tightly connected to a person’s or group’s view of the world. A Christian might believe that sex outside of marriage is wrong. He or she might base this belief on the Bible, which this person was taught in the family or in the religious community. This maximal moral code is connected to an entire set of ideas about divine governance of human affairs, the status of Jesus Christ as the redeemer of the world, Jesus’s authority to lay down moral precepts, the formation of the body of writings through which Jesus’s maxims come to us in a scriptural tradition that is now called the New Testament, and the status of church and family as the primary purveyors and interpreters of this scriptural tradition.

But these maximal moral ideas cannot form an adequate moral framework for complex modern societies. They are too fully elaborated, too maximally particular in their religious, political, and social perspectives. By contrast, minimal moral ideas, or moral ideas that have been separated from their particular context in order to converse with those not of that tradition or worldview or group, are absolutely necessary for any functioning society. Minimal ideas are the basic codes of conduct that we require of one another even when they are not in our group. They are what enable a Catholic Latino migrant laborer, an atheist professor of religion at an Ivy League University, and a Hindu engineer living in the suburbs, though they may have radically different maximal moralities, to live together in a complex society without it degenerating into anarchy. In that sense, the role of minimal moral ideas cannot be overemphasized. “‘Minimalism,’” Walzer claims, “does not describe a morality that is substantively minor or emotionally shallow. The opposite is more likely true: this is morality close to the bone. . . . The minimal demands that we make on one another are, when denied, repeated with passionate insistence.”[iv]

The distinction between minimal morality (which is publicly affirmed, and therefore publicly regulated) and maximal morality (which is privately believed and thereby privately maintained) still leaves plenty of room for disagreement about what ought to be considered minimal and what ought to be considered maximal moral obligations. Those disagreements are the stuff of contemporary debate. I don’t propose to solve that debate in this book.

My aim is only to reframe the debate so that it is a productive one. To do that, we must have an adequate conception of our past. As Tony Judt said in an interview in Historically Speaking, “The historian’s task is not to disrupt [our false memories of the past] for the sake of it, but it is to tell what is almost always an uncomfortable story and explain why the discomfort is part of the truth we need to live well and live properly.” The belief that we need a truthful understanding of the past in order to live well and to live properly is the book’s animating impulse. We need, as Ray Haberski says, to “confront versions of ourselves that we’d rather just forget,” because to remember this past, to come to terms with it, is a first step in determining the minimal obligations that we have to other another.

---

[i] Mark Chaves, "Secularization as Declining Religious Authority," Social Forces 72 (March 1994): 749-74. See also, Christian Smith, ed., The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Berkeley and Los Angeles: University of California Press, 2003), 1-96; Karel Dobbelaere, "Secularization: A Multi-Dimensional Concept," Current Sociology 29 (1981): 1-216.

[ii] Theodore Munger, The Freedom of Faith, 6^th ed. (Boston: Houghton, Mifflin, and Co., 1883), 24 (first quotation), 25 (second quotation). Emphasis added.

[iii] Will Herberg, Protestant, Catholic, and Jew: An Essay in American Religious Sociology (New York: Doubleday, 1955), 15.

[iv] Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 1994), 6.

Secularization, Pluralism, and Moral Minimalism: A Response to Williams, Hartman, Haberski, and Hickman (Roundtable Part V)

David Sehat

I am grateful to Daniel K. Williams, Andrew Hartman, Ray Haberski, and Christopher Hickman for their careful readings and their generous evaluations of my book. They have largely captured my argument and, though I have a few points of disagreement, a point-by-point engagement would be both tedious and ungenerous to their efforts. Instead, let me explain how I approached this book, which might capture and clarify to what extent we agree or disagree.

As I see it, my book turns on three somewhat abstract but important concepts: secularization, pluralism, and moral minimalism. Each involves complicated theoretical and normative positions. Since I was aiming at the general reader (that mythical beast), I didn’t want to burden the text with a full elaboration of these concepts. But after reading these responses to the book, it now seems to me that more remains to be said.

1. Secularization

Williams chides me for what he sees as a persistent tendency to seek out “a secular basis for the expansion of rights” by neglecting the role of religious people, particularly religious liberals. And it is true that The Myth of American Religious Freedom is a history of secularization. But I do not mean secularization quite the way that Williams suggests, so let me be clear about my understanding of the term.

Over the last few decades, secularization theory seemed dead at times. After all, at its base secularization seemed to require the decline of religion and, love it or hate it: we all know that religion is alive and well. But more recently, historical and theoretical sociologists have been refining and reformulating the notion of secularization. Though there are many perceptive writers that I might have drawn upon, in this book I relied upon the work of the sociologist Mark Chaves.

Chaves argues that secularization involves two distinct processes. The first is the differentiation of religion from other institutional structures such as government, education, or business. This differentiation of institutional structures is a mark of modernity. In other words, whereas in past ages governmental, religious, and business authorities might have been connected or combined in the king or prince or pope, modernity entails the division and separation of these various structures. Secularization then occurs as religious authority declines in scope, that is, as religious authority becomes increasingly confined into its own institutional sphere with less relevance for other institutional spheres. The key issue in this version of secularization theory is religious authority. Though many, many people may continue to believe or to practice various religious traditions, this fact is not relevant to the process of secularization, according to Chaves. By focusing on the scope and intensity of religious authority, Chaves offers a theory of secularization that focuses our attention not on the prevalence of individual belief but on the social significance of religion.[i]

Those who have read The Myth of American Religious Freedom will know that the issue of religious authority is a major theme of the book. Religious partisans have long argued that their religion provides the morals to be enforced in law. Another way of saying it is that religious partisans made their religious authority determinative in law and government, sometimes explicitly, sometimes less so. The success of religious partisans in imposing their religious authority on law resulted in a moral establishment, a proxy religious establishment that provided religious authority with the coercive powers of law.

My book focuses on the role of dissenters to the moral establishment—those who objected to the reach of religious authority into law and government. Dissenters were central to the decline of the moral establishment and the secularization of American public life, a secularization that, I must add, is tenuous and seems, in the last several decades, to be moving into reverse. And it is this understanding of secularization that apparently did not come across as clearly as I wished. Williams, for example, thinks that I depict religious liberals as people “who quickly realized that their arguments did not depend upon religious faith and who therefore embraced secular language in advancing human rights.”

But this is not quite what I say, or at least what I intended to say. I sought to say something at once more specific and also stronger: Religious liberals, precisely because of their religious beliefs, were agents of secularization, a secularization that involved the expansion of rights because it meant the decline of religious authority outside the sphere of religious institutions. In making this argument, I think I am being true to liberal theology. Religious liberalism, especially in the nineteenth century but also in the twentieth century, involved a belief in the immanence of God in human history. To religious liberals, God was so present in human affairs that history involved the progressive and inexorable working out of his will for the glorious culmination of his millennial rule.

As a result, there was no basis for a transcendent, prophetic religious voice in religious liberalism. The practical obliteration of any distinction between the sacred and the profane, with the profane all but swallowing up any independent religious authority, meant that religious liberalism followed the currents of the age that others put in motion. As the late-nineteenth century religious liberal Theodore Munger put it in his widely regarded manifesto of religious liberalism, The Freedom of Faith, religious liberalism “allies itself with the thought of the present age.” This alliance, according to Munger, provided the basis for liberal theology’s distinctive character relative to other religious traditions: “Hence its ethical emphasis; hence its readiness to ally itself with all movements for bettering the condition of mankind,—holding that human society itself is to be redeemed, and that the world itself, in its corporate capacity, is being reconciled to God; hence also an apparently secular tone, which is, however, but a widening of the field of the divine and spiritual.”[ii]

That last sentence precisely shows the absolute loss of any distinctive religious authority in religious liberalism. I’m sure Munger would have preferred to see religious liberalism as so successful that it diffused liberal Protestant ideals into the wider culture. This was how John Dewey saw religious liberalism, which explains why Dewey viewed churches as relics of a once distinctive religious voice that were, by Dewey’s time, holding back the emergence of a truly religious society. But I view the process, instead, as the collapse of a distinctive religious voice, as those from the outside of the tradition pressed claims upon religious liberals that religious liberals accepted for reasons within their own tradition. The effect is the same. The advance of religious liberalism meant the decline of religious authority in other arenas of society, precisely because religious liberalism aligned itself with the thought of the age. So profoundly did religious liberalism blur any distinction between religious and secular, so complete was the loss of any basis for religious authority without relying on another source, that Will Herberg, when considering the American religious establishment at its liberal apex in 1955, would marvel at “this secularism of a religious people, this religiousness in a secularist framework.”[iii]

2. Pluralism

This brings me to my second point. The debate that I try to illuminate is not ultimately one between Christians and secularists. It is, rather, a debate between establishmentarians and pluralists—that is, between those who seek the use of law to advance their sectarian religious vision and those who seek the use of law to create a social and political framework capacious enough that many different types of people would be able to live unmolested under the same law.

That divide explains my treatment of the civil rights movement, which Williams sees as downplaying the movement’s religious component. But of course the civil rights movement had a religious component, and I did not try to suggest otherwise. In fact, I went out of my way in the brief space that I devoted to Martin Luther King Jr. to pick one of his most theological texts: his 1963 Letter from a Birmingham Jail, which he addressed to white, Christian ministers. My point about King was not to try to make him into a secularist. It was to show King as a pluralist. That is exactly why the civil rights movement was successful. Its appeals to justice were capacious enough to include the support of conservative Jews, liberal Catholics and Protestants, and secular activists (including, most prominently, secular Jews). But the pluralism of the civil rights movement—as well as its offshoots in the other social movements of the later 1960s and 1970s—is exactly what made the 1960s into a secularizing period. Pluralism necessarily means the destabilizing of a single religious authority in law, which has the ultimate effect of an absolute decline of religious authority in law since religious authorities conflict.

This divide between pluralists and establishmentarians is the fundamental intellectual divide of the book, so it is not surprising that my other reviewers train their criticisms on it as well. Andrew Hartman and Christopher Hickman complain, in slightly different ways, that I make too much of the divide and so both overstate its relevance and, in the process, overstate the argument’s claims of originality. I think this, too, misreads the book. As I maintained in my introduction, “There are always many who occupy a middle space, or who remain aloof from any divide, having altogether different concerns and different conceptions” (pp. 9-10). My point was not to stretch the history of this divide to cover everything in American history, but to reveal a previously unappreciated tension that has existed for all of American history. And by connecting the debate between pluralists and establishmentarians with other debates over slavery, women’s rights, or labor, I sought to show that these debates featured not merely disagreements over particular issues but disagreements over divergent political philosophies. This focus on political philosophy is what Hartman especially misses. His contention that slaveholders' invocation God in support of their social arrangements was merely an “opportunistic cover for slave power” seems not only unprovable but also beside the point. When we move beyond the specific debates to the wider political philosophies that they entail, the divide between the pluralists and the establishmentarians asserts itself as part of, if not fundamental to, these wider debates over political philosophy that were taking place around slavery, women’s rights, and the rights of labor in an ordered society.

3. Moral Minimalism

Ultimately, though, pluralism is not in itself a workable political philosophy because it does not explain how these different groups are supposed to be connected in a single polity. So, too, individualism, which could be said to be the most extreme form of pluralism, leads only toward the utopias of anarchism. We need something else. I am, as Hartman points out, in deep sympathy with the early twentieth-century liberal thinkers such as Croly and Lippmann. But their vision of progress was, alas, naive and proved too technocratic, too reliant on a bureaucracy of experts, and too utopian in the aftermath of World War I.

This leads me, at the very end of the book, to Michael Walzer’s idea of moral minimalism. The fact is that we do owe other members of our society something. We are not little islands. Walzer lays down some helpful distinctions as we think through our obligations. In Walzer’s explanation, moral ideas are ordinarily embedded in thickly contextualized moral outlooks that remain tightly connected to a person’s or group’s view of the world. A Christian might believe that sex outside of marriage is wrong. He or she might base this belief on the Bible, which this person was taught in the family or in the religious community. This maximal moral code is connected to an entire set of ideas about divine governance of human affairs, the status of Jesus Christ as the redeemer of the world, Jesus’s authority to lay down moral precepts, the formation of the body of writings through which Jesus’s maxims come to us in a scriptural tradition that is now called the New Testament, and the status of church and family as the primary purveyors and interpreters of this scriptural tradition.

But these maximal moral ideas cannot form an adequate moral framework for complex modern societies. They are too fully elaborated, too maximally particular in their religious, political, and social perspectives. By contrast, minimal moral ideas, or moral ideas that have been separated from their particular context in order to converse with those not of that tradition or worldview or group, are absolutely necessary for any functioning society. Minimal ideas are the basic codes of conduct that we require of one another even when they are not in our group. They are what enable a Catholic Latino migrant laborer, an atheist professor of religion at an Ivy League University, and a Hindu engineer living in the suburbs, though they may have radically different maximal moralities, to live together in a complex society without it degenerating into anarchy. In that sense, the role of minimal moral ideas cannot be overemphasized. “‘Minimalism,’” Walzer claims, “does not describe a morality that is substantively minor or emotionally shallow. The opposite is more likely true: this is morality close to the bone. . . . The minimal demands that we make on one another are, when denied, repeated with passionate insistence.”[iv]

The distinction between minimal morality (which is publicly affirmed, and therefore publicly regulated) and maximal morality (which is privately believed and thereby privately maintained) still leaves plenty of room for disagreement about what ought to be considered minimal and what ought to be considered maximal moral obligations. Those disagreements are the stuff of contemporary debate. I don’t propose to solve that debate in this book.

My aim is only to reframe the debate so that it is a productive one. To do that, we must have an adequate conception of our past. As Tony Judt said in an interview in Historically Speaking, “The historian’s task is not to disrupt [our false memories of the past] for the sake of it, but it is to tell what is almost always an uncomfortable story and explain why the discomfort is part of the truth we need to live well and live properly.” The belief that we need a truthful understanding of the past in order to live well and to live properly is the book’s animating impulse. We need, as Ray Haberski says, to “confront versions of ourselves that we’d rather just forget,” because to remember this past, to come to terms with it, is a first step in determining the minimal obligations that we have to other another.

---

[i] Mark Chaves, "Secularization as Declining Religious Authority," Social Forces 72 (March 1994): 749-74. See also, Christian Smith, ed., The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Berkeley and Los Angeles: University of California Press, 2003), 1-96; Karel Dobbelaere, "Secularization: A Multi-Dimensional Concept," Current Sociology 29 (1981): 1-216.

[ii] Theodore Munger, The Freedom of Faith, 6^th ed. (Boston: Houghton, Mifflin, and Co., 1883), 24 (first quotation), 25 (second quotation). Emphasis added.

[iii] Will Herberg, Protestant, Catholic, and Jew: An Essay in American Religious Sociology (New York: Doubleday, 1955), 15.

[iv] Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 1994), 6.

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.

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.