From the Publisher

A brilliant and urgent appraisal of one of the most profound conflicts of our time

Even before George W. Bush gained reelection by wooing religiously devout "values voters," it was clear that church-state matters in the United States had reached a crisis. With Divided by God, Noah Feldman shows that the crisis is as old as this country--and looks to our nation's past to show how it might be resolved.

Today more than ever, ours is a religiously diverse society: Muslim, Hindu, and Buddhist as well as Catholic, Protestant, and Jewish. And yet more than ever, committed Christians are making themselves felt in politics and culture.

What are the implications of this paradox? To answer this question, Feldman makes clear that again and again in our nation's history diversity has forced us to redraw the lines in the church-state divide. In vivid, dramatic chapters, he describes how we as a people have resolved conflicts over the Bible, the Pledge of Allegiance, and the teaching of evolution through appeals to shared values of liberty, equality, and freedom of conscience. And he proposes a brilliant solution to our current crisis, one that honors our religious diversity while respecting the long-held conviction that religion and state should not mix.

Divided by God speaks to the headlines, even as it tells the story of a long-running conflict that has made the American people who we are.

The Washington Post - E. J. Dionne

E.In an arena so contested and contentious, it's a blessing to have an honest voice stating uncomfortable truths, to wit: "It is appealing to think that, deep down, we all agree on what really matters. Only we don't -- and we have to come to terms with that fact of disagreement while still engaging in a common national project." Amen.

The New Yorker

Having examined Islam and democracy in his first book, “After Jihad,” Feldman, a law professor at N.Y.U., turns his attention to America’s own fraught religious-secular divide. Much of the book consists of an agile account of the evolution of church-state relations, from the creation of the First Amendment to the 2003 Supreme Court ruling against a public display of the Ten Commandments. Feldman identifies two polarized camps today: “values evangelicals,” who uphold religious values as integral to political decisions, and “legal secularists,” whose aim is to keep religion and government separate. He downplays the heterogeneity within these groups, perhaps in order to bolster his solution for reconciliation: sanctioning “public manifestations of religion,” while withholding government funding from religious institutions.

Publishers Weekly

Feldman, a legal rising star and author of After Jihad (a look at democracy and Islam), turns his attention to America's battle over law and religious values in this lucid and careful study. Those Feldman calls "legal secularists" want the state wholly cleansed of religion, while "values evangelicals" want American government to endorse the Christianity on which they say its authority rests. Feldman thinks both positions too narrow for America's tastes and needs. Much of his volume shows how those needs have changed. James Madison and his friends, Feldman writes, hoped to "protect religion from government, not the other way round." Debates in the 19th century focused on public schools, whose culture of "nonsectarian Christianity" (really Protestantism) created dilemmas for Catholics, and in the 20th century faced challenges from secularists and evangelicals-the former won in the courts until very recently; the latter, often enough, won public opinion. Feldman proposes a compromise: that government "[allow] greater space for public manifestations of religion" while preventing government from linking itself with "religious institutions" (by funding them, for example). The "values" controversy, as Feldman shows, concerns electoral clout, not just legal reasoning. His patient historical chapters will leave readers on all sides far more informed as matters like stem-cell research and the Supreme Court's forthcoming 10 Commandments decision take the headlines. Agent, Heather Schroder. (July) Copyright 2005 Reed Business Information.

Foreign Affairs

Sobered and enriched by his experience in the Iraqi and Afghan constitutional debates, Feldman, a law professor at New York University, returns to the U.S. debate over secularism in this rich and rewarding book. He swiftly and competently reviews key episodes in the history of church-state relations to show how the growing religious diversity of the American people has led to new efforts to find common ground for political and social life. Feldman's brief but brilliant analysis of the recent Supreme Court approach to church-state issues is required reading for anyone who wants to understand the contemporary debate. The modern Supreme Court, Feldman argues, has gotten things almost exactly wrong. Recent decisions have lowered the walls preventing the state financing of religious activities (such as voucher programs) while raising new and historically unprecedented barriers toward religious symbols in public (such as crèches at town halls). Feldman would allow more religious symbols in the public square but try harder to keep public dollars out of church (and synagogue and mosque) coffers. Whatever the fate of his proposals, Feldman has done a superb job of making complex legal and historical information on an important public debate usefully accessible.

Library Journal

Feldman (NYU Law School; What We Owe Iraq: War and the Ethics of Nation Building) traces the evolution of the role of religion in American political life from the Colonial period to the present, paying particular attention to the development of legal doctrines. The First Amendment stipulates that Congress cannot pass laws prohibiting the free exercise of religion, yet throughout our country's history, Americans have debated what role, if any, religion should have in government and how government should treat religion. Recent elections, legislation, confirmation proceedings, and Supreme Court decisions have fanned the embers of this ever-hot topic, causing them to ignite and produce intensely heated-and damaging-partisan rhetoric. This book has two great strengths: it offers a balanced overview of the subject, clearly articulating the sources of the differences between those who seek legislation that incorporates their religious values ("values evangelicals") and those who feel the government must be secular ("legal secularists"), and it offers a reasonable approach for reconciling the differences between the two. An excellent, very readable work, deserving a wide audience; highly recommended for all libraries.-Thomas J. Baldino, Wilkes Univ., Wilkes-Barre, PA Copyright 2005 Reed Business Information.

Kirkus Reviews

Can't we all-fundamentalist and atheist and nonideologist-just get along?It wouldn't seem so, writes NYU law professor Feldman (After Jihad, 2003), who argues that the ever-hotter war between the proponents of "values evangelism" on one hand and "legal secularism" on the other "now threatens to destroy a common national vision." That vision includes belief in the constitutional separation of church and state; and, as Feldman observes, the battle is not strictly about religious belief as such, but about how religious belief plays out in the conduct of politics and the running of government. Separation was, Feldman suggests, the product of a simpler time, when no one opposed the idea of religious liberty and when Protestantism-the religion of 95 percent of Americans at the time of independence-was so divided that no single denomination was likely to seize control of the state; Anglicanism may have threatened for a time to do so in Virginia, but thanks to the liberty-of-conscience clauses of the Constitution-written by dissenters Thomas Jefferson and James Madison-the "national experiment with institutional separation of church and state" was able to take hold. Things are somewhat more complex now that such a large number of religious beliefs, and not just varieties of Protestantism, are current in America. Yet, Feldman suggests, the separation of church and state does not strictly mean that a city hall cannot erect a creche, nor that a DMV employee cannot wish a motorist a Merry Christmas; the founders, he argues, "did not think that the state needed to be protected from the dangers of religious influence, nor were they especially concerned with keeping religious symbolism out of the publicsphere." Just so, that freedom does not mean that the government should necessarily be beholden to religious sensibilities-as when Sunday mail delivery was abolished, along about 1828, because clerics feared that open post offices would draw people away from church. A reasoned, reasonable and consensus-seeking argument that is, of course, in danger of going unheard amid all the shouting.

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Table of Contents

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DIVIDED BY GOD

FARRAR, STRAUS AND GIROUX

Chapter One

On June 12, 1788, James Madison, the father of religious liberty in America, stood before the Virginia convention debating the ratification of the Constitution and opposed the First Amendment. There was no need for the Constitution to prohibit an established religion or to protect religious liberty, Madison argued. Religious diversity would guarantee religious freedom by itself: "For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest." There were so many different religious denominations in the United States that no one group would ever be able to impose its will over the others. It was pointless to prohibit what no one group could ever hope to accomplish.

The assembled Virginians knew Madison as the man who had led the fight to disestablish the Anglican church in Virginia, guarantee religious liberty, and block the state even from collecting an assessment that could be earmarked for distribution to the religious teacher of one's choice. No American, not even Jefferson, had better credentials on the separation of church and state. Virginia's religious dissenters, Presbyterians and Baptists who had been Madison's close allies in the five-year struggle in the state legislature, wanted a guarantee in the federal Constitution that would parallel what they had won at the state level. Notwithstanding Madison's predictive judgment about the likely effects of diversity, they still feared the possibility that someday one denomination really might be able to establish a national religion that would make them pay taxes in support of a church to which they did not belong. The solution they demanded was an amendment to the Constitution to guarantee religious liberty. Why was Madison suddenly on the wrong side?

PRINCIPLE AND POLITICS

In the solution to this puzzle lies the key to the most basic question about the relationship between church and state in the United States: Why do we have a First Amendment prohibiting the establishment of religion and protecting the free exercise thereof? The answer combines principle and politics. The principled reason behind the religion clauses of the First Amendment was to protect the liberty of conscience of religious dissenters-and everybody involved in the process understood that fact. The political reason for the clauses was that no one in the new United States opposed the idea of religious liberty, and given the religious diversity among Americans, no one denomination seriously believed it could establish a national religion of its own. Although 95 percent were Protestants of some sort (as of 1780 there were just fifty-six Catholic churches and five Jewish congregations in the whole country), American Protestants ranged from Anglican (soon to be renamed Episcopalian) and Congregationalist to Presbyterian, Baptist, Quaker, and beyond. Practically speaking, the fact of religious diversity made a nationally established religion impossible. The sovereign people belonged not to one faith, but several. The solution, adopted by the first Congress, which wrote the Bill of Rights, passed it, and sent it to the states for ratification, was to prohibit a national establishment and guarantee free exercise.

Madison was profoundly committed to religious liberty and opposed to religious establishment of any kind; in fact, he believed that no government had the right to take any action in the religious sphere-certainly not the proposed new federal government, whose powers were limited to those granted in the draft Constitution he had done so much to produce. In addition to principle, Madison had another reason for judging an amendment unnecessary. In thinking about the creation of a new federal republic that would perfect the union of thirteen still-disparate states, he had developed the world-changing idea that America's diverse factions could counterbalance each other, instead of tearing the country apart. Applying this notion to religion convinced Madison that only national politics, not a parchment promise, could guarantee religious liberty and nonestablishment.

But Madison was also a politician, and his constituency of religious dissenters was having none of his argument. So Madison did what any politician would do, only better: he abandoned the stance he took at the Virginia ratifying convention, got himself elected to the first House of Representatives, and took the lead in drafting the religion clauses of the First Amendment. Because he combined principle and politics when it came to the religion clauses, Madison's story is central if we want to understand the early history of the church-state relationship in the United States.

That history is under dispute today as never before. In the media, in scholarly writing, and in judicial opinions, one can hear both that the framers gave us a "Godless Constitution" with strong separation between church and state, and, to the contrary, that the Constitution assumed a Christian nation and prohibited the federal government only from officially preferring one denomination to others. The story we tell about our founding is our creation myth, so it is not surprising that the framers' decisions and beliefs regarding religion and government loom very large in the current debate about the subject. Both legal secularists and values evangelicals have a huge stake in claiming the framers' original authority for their views.

But the truth is that both of these perspectives are wrong, both developed over the last fifty years in order to justify positions in a contemporary legal and cultural fight under circumstances very different from the framers'. In what follows, I briefly sketch the most prominent views on the subject-then go back to the beginning and set the record straight.

THE BATTLE LINES

The framers undertook an extraordinary experiment when they broke from past practice and prohibited the establishment of religion by the federal government while guaranteeing free exercise -on that much, everyone can agree. In England and on the European continent, in Catholic and Protestant countries alike, it had long been assumed that a close relationship between established religion and government was necessary to maintain social order and national cohesion. The framers were experimenting across the board, trying to create a federal union out of self-governing states despite the certainty of mainstream theorists like the influential Montesquieu that a geographically large republic could not survive. That innovation came out of necessity. The Articles of Confederation, loosely tying the original thirteen states to one another, had failed politically and economically, and the framers had little choice but to try something new. But why experiment in the realm of church and state?

One traditional answer begins with Thomas Jefferson, the most controversial founding father in his lifetime and beyond, and the author of the Virginia Statute for Religious Freedom, which ended state financial support for organized religion in Virginia. Determined to be remembered for the statute, Jefferson ordered it mentioned on his tombstone as one of his three greatest accomplishments, alongside the authorship of the Declaration of Independence and the foundation of the University of Virginia. As president, Jefferson also coined what would become the single most influential metaphor in American constitutional law when he wrote, in an official letter to the Baptists of Danbury, Connecticut, that the Constitution had "erected a wall of separation between church and state."

According to the dominant historical interpretation, Jefferson's personal religious skepticism and his faith in unfettered reason combined to create a deep desire to separate church and state in order to protect each from the other. Individual thought must be protected from government-enforced orthodoxy, and government must in turn be saved from the baleful effects of organized religion. Denounced in his lifetime as a nonbeliever, and in all likelihood a deist at most, Jefferson left evidence in his personal letters of a powerful streak of anticlericalism and disdain for organized religion. For secularists this has long made Jefferson an attractive hero, precursor to their view that the reasons for separation lie as much in keeping religion from meddling in state affairs as in protecting religious liberty.

The problem with this emphasis on Jefferson's role in the shaping of religious liberty in America is that although he did write the Virginia statute, he was in Paris as the American ambassador in 1786 when it was actually passed, and he was still there in 1789, when the Bill of Rights-including the First Amendment-was added to the Constitution. Indeed, Jefferson missed the entire Constitutional Convention. Those who put Jefferson at the center of the story therefore have to treat Madison, his trusted lieutenant, as the instrument whereby Jefferson's views were executed. According to this view, Madison's activities on behalf of religious liberty, conducted during Jefferson's long absence, directly connect the Jeffersonian triumph of strong separation in Virginia and the adoption of the same policy in the federal Constitution. At least since the 1870s, when the Supreme Court dusted off Jefferson's metaphor of the "wall of separation," there have been voices arguing that strict separation was the American plan of government from the beginning.

Yet an alternative, revisionist view of the history, first articulated by Mark DeWolfe Howe in the 1960s, adopted by several Justices of the Supreme Court, and recently redeveloped and deepened in an important book by Philip Hamburger, emphasizes not Jefferson's concern for the protection of the state from religion but rather eighteenth-century religious dissenters' concern to protect the church from the state. This school points out that the phrase "wall of separation" appears nowhere in the Constitution, nor indeed in the state ratification debates leading up to the enactment of the First Amendment. The troublesome metaphor surfaced first almost 150 years before Jefferson, in the writings of the great dissenter Roger Williams, who broke from Massachusetts Bay Puritanism, embraced Baptist views-among other unorthodoxies-and founded the colony of Rhode Island, in which religious liberty was assured from the beginning. For Williams, the wall of separation came between the "garden" of religion and the "wilderness" of temporal government-and it protected the garden from the wilderness, not the other way around. Williams's metaphor was rediscovered by Isaac Backus, a New England Baptist of Jefferson's generation, who believed, like Williams, that an established church-which he considered to exist in the Massachusetts of his day-would never protect religious dissenters like himself and must be opposed in order to keep religion pure.

According to this revisionist view, Jefferson may have distrusted religion and wanted to protect the state from it, but that was his personal view, not that of the Constitution or indeed of the Baptists and other eighteenth-century religious dissenters who demanded an amendment to the Constitution protecting religious liberty. Alongside a Jeffersonian line emphasizing the protection of the state from the organized church was a distinct line of thought associated with Baptists like Backus and the itinerant preacher and ideologue John Leland, which sought to protect religious dissenters from government coercion. Together, early protosecularists (Jefferson and Madison) and proto-evangelicals (Backus, Leland, and others) made common cause in the fight for nonestablishment-but for starkly different reasons.

So in prohibiting "an establishment of religion," according to this alternative view, the framers did not follow what they characterize as the antireligious motivations of Jefferson, who was not even in the country. Rather, they must have meant to prohibit only the kind of arrangement they knew from the Church of England as established in the colonies. An established church existed when the government officially recognized, supported, and by law favored one organized denomination in particular, to the exclusion and detriment of all others. As long as the government does not prefer one religion or denomination, this view concludes, the constitutional ban on establishment has not been violated. It follows that, today, the government may support religion at will, so long as the support is "nonpreferential," available to all religions on equal terms.

What is more, say the revisionists as well as some other scholars, the First Amendment operated only at the federal level when it was enacted. It stated simply that "Congress shall make no law respecting an establishment of religion," leaving the states free to legislate as they wished and essentially placing religious questions within their jurisdiction rather than that of the federal government. Both before and after the Bill of Rights became law, some states collected taxes and distributed them to congregations and ministers, as they had in the colonial period. This interpretation understands the First Amendment as enacting a type of federalism, found elsewhere in the Constitution, guaranteeing the states autonomy in certain domains. A handful of constitutional historians-and one Supreme Court Justice-go even further, maintaining that the words "no law respecting an establishment of religion" not only left the state arrangements untouched but were actually intended to protect those state establishments of religion from congressional interference by barring Congress from legislating with respect to existing religious arrangements in the states. According to one version of this more extreme view, whatever the federal government may or may not do, states should not be barred from establishing religion, even after most of the other freedoms in the Bill of Rights were extended by the Fourteenth Amendment so that they apply not just to the federal government, as originally intended, but to the states as well.

One can find large measures of historical truth in both the traditional and the revisionist approaches. Jefferson and Madison did play major roles in formulating the canonical ideal of religious liberty that made its way into the Constitution. They did, in fact, form an alliance in Virginia with evangelical Presbyterian and Baptist dissenters from Anglicanism whose religious beliefs were very different from their own. When Congress wrote the First Amendment, it did intend that it apply only to Congress, not the states.

But the historical story needs to be told anew. Both existing versions slight the clearly articulated principled rationale for free exercise and nonestablishment that was common to deists, Baptists, as well as everyone in between: the liberty of conscience. Both, too, miss the motivating political reality that pushed the liberty of conscience onto state and then federal agendas: the sudden increase in religious diversity that resulted from bringing the states together into a federal union. Within the individual states, some, especially in the mid-Atlantic, already had a great deal of religious diversity. But in New England, Congregationalism dominated, and in the South, the Church of England remained the denominational choice of the majority. Where religious diversity within individual states was small, religious establishments, acknowledged or unacknowledged, were possible. Now that these states were to be joined in a single national government, though, the religious diversity between states made a national establishment impossible. So when Congress wrote what became the religion clauses of the First Amendment, it meant to do much more than leave religion to the states. It intended to enshrine in the federal Constitution the protections against religious coercion that Americans had learned to think of as natural rights.

LIBERTY OF CONSCIENCE: THE ORIGINS OF AN IDEA

The idea of liberty of conscience is so commonsensical today that we hardly imagine that it has a history at all. Americans in the decades leading up to the First Amendment broadly agreed that government-whether state or federal-had no authority to coerce individuals in matters of religious conscience. They shared this view regardless of educational background or religious stance. The remarkable convergence of views about liberty of conscience had an origin: it reflected the diffusion of arguments for religious toleration made a century earlier by John Locke, the seventeenth-century British philosopher who had greater influence on the thought world of the framers than any other one writer.

(Continues...)

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Excerpted from DIVIDED BY GOD by NOAH FELDMAN Copyright © 2005 by Noah Feldman. Excerpted by permission.
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