One Nation Under Law: America's Early National Struggles to Separate Church and State

One Nation Under Law: America's Early National Struggles to Separate Church and State * Mark Douglas McGarvie * DeKalb, Ill.: Northern Illinois University Press, 2004 * xii, 258 pp. * $38.00

In this study of the Revolutionary and early national periods, Mark Douglas McGarvie, assistant professor of history and law at the University of Richmond, argues that the contract clause of the Constitution, not the First Amendment, separated church and state. It did so by transforming churches into "private voluntary associations" (p. 3) without significance in civil society. This legal development reflected a change in ideology as the founders' generation rejected the "providential Christianity" of their forebears in favor of Enlightenment "libertarianism"(p. 3). The Constitution marked "the declaration of war" between these "contesting worldviews" (p. 15). During the disestablishment phase that lasted into the nineteenth century, liberal republicanism eventually triumphed and "marginalized" (p. 21) the churches. The Supreme Court completed the process by applying contract-law theory, most notably in the Dartmouth College Case of 1819, to render churches purely private institutions. Henceforth the contractual rights of private individuals trumped any claim of "perceived public interest or communitarian ethic" (p. 47). A conscious, deliberate secularism in ideas and law had defeated the reactionary forces of religion.

Many historians, as the author notes in the introduction, will take exception to this thesis, and with good reason, but the chief problem with this study is its scholarship. First, the book is replete with factual errors. Some are small but annoying. For example, Patrick Henry's 1784 assessment proposal was not designed to support "a Christian Church" (p. 16) but all churches. The Supreme Court applied the First Amendment to the states in the 1940s not the "1920s" (p. 20). Before 1776 there were no "State governments" (p. 35) in the British colonies. Virginia instituted "statewide public education" after the Civil War, not "before 1805" (p. 63). As late as the 1790s "most of the states" no longer "supported established churches"(p. 81). Other mistakes directly affect the thesis. The seizure of the glebes in Virginia in 1802 followed relentless lobbying by evangelical Baptists, not "liberals" (p. 17). Nor could Virginia's churches gain "protection through incorporation" (p. 17) either then or later.

A more serious problem is the methodology. The lawyer eclipses the historian as McGarvie attempts to build a case for rooting libertarian thought in this era. Evidence that would dispute his conclusions is omitted or glossed over. Jefferson, for example, deserves more attention. Instead of "insisting that any official reference to God and his blessings violated the First Amendment" (p. 60) as McGarvie asserts, Jefferson in his inaugural addresses and in multiple statements to Congress appealed to God's providential guidance. Ideological warfare apparently took a holiday.

A third, even more serious problem: although this book contains abundant endnotes, wary readers should check the citations. secondary sources that contain little or no scholarly apparatus are cited as authoritative. Sometimes direct quotations are not in the cited source. For example, in discussing James Madison's amendment to George Mason's draft of the sixteenth article of the Declaration of Rights, the author quotes Richard Bernstein (Are We to Be a Nation? The Making of the Constitution, p. 56) that Madison's amendment intended "the idea of religious freedom as protected by the separation of church and state" (p. 57). Perhaps Madison intended this, but Bernstein does not say so, nor did Madison. At other times the cited sources contradict the author's claims. Arguing that Georgia's 1777 constitution exemplified the Revolutionary era's "shift to secular humanism," McGarvie states: "Parishes with names such as St. Paul, St. George, Christ Church, and St. James were renamed Richmond, Burke, Chatham, and Liberty Counties respectively"(p. 45). But his source (Benjamin Poore's, Federal and State Constitutions, 1:378) makes clear that Georgia's constitution did not rename (or secularize) Anglican parishes. Rather Georgia defined the territory of new counties by reference to existing parish boundaries. There is much more that is problematic about this book. When advocacy replaces scholarly objectivity, it renders the entire result suspect.

Reviewed by Thomas E. Buckley, S.J., professor of history at the Jesuit School of Theology and Graduate Theological Union, Berkeley, California. His most recent publication is "The Religious Rhetoric of Thomas Jefferson" in Daniel L. Dreisbach et al., eds., The Founders on God and Government (2004).

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