Religion and the American Constitutional Experiment: Third Edition / Edition 3

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The third edition of this classic book provides a comprehensive, multidisciplinary overview of the history, theory, law, and comparative analysis of American religious liberty from the earliest colonial period through the most recent Supreme Court cases. The authors present balanced, accessible discussions of controversial issues, such as funding religious schools and charities and displaying religious symbols on government property. Three chapters new to this edition cover the free exercise of religion, religion and public life, and religious organizations and the law. In addition, an expanded concluding chapter places the American experience in global context by comparing contemporary American religious liberty law with international human rights standards.
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Editorial Reviews

From the Publisher
“This new edition of John Witte’s indispensable volume, done in collaboration with Joel Nichols, lives up to the standards of the previous volumes. Anyone interested in religious liberty and freedom, besieged in so many parts of the world, will find their narrative of the struggle for religious rights and liberties in American history illuminating. It is impossible to recommend this book too highly.”
—Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics, The University of Chicago, author most recently of Sovereignty: God, State and Self, her Gifford lectures

“This book is an extremely valuable, easily readable, history of understandings of free exercise and nonestablishment. In a field in which that history is often portrayed to support one modern outlook or another, the account the authors provide is lucid, full, balanced, and highly persuasive.”
—Kent Greenawalt, Columbia Law School

“This study of America’s ongoing effort to secure religious freedom through constitutional law is invaluable, and illuminating, for students and scholars alike. The key principles that originally informed and inspired that effort are identified and clarified; important ideas like ‘church-state separation’ and ‘liberty of conscience’ are unpacked; the twists and turns of the Supreme Court’s First Amendment decisions and doctrines are helpfully navigated; and the American model of religious liberty is put in revealing conversation with others around the world. This edition’s new and timely treatments of the rights and role of religious organizations, and of present-day attempts to downplay the distinctiveness of religion, make an already indispensable resource even better than it was.”
—Richard W. Garnett, Notre Dame Law School

“In this fine, scholarly book… authors John Witte, Jr., and Joel A. Nichols construct for the reader an excellent foundation for understanding the religious issues that have captured the attention of Americans since European settlers first came to these shores.” –The Law and Politics Book Review

Praise for Previous Editions:

"By this book, John Witte has established himself as a leading scholar in the history of American constitutional law of religious liberty. Its excellent topical analysis and its thorough coverage and documentation makes it a perfect textbook, and by virtue of its profound insights it is essential reading for scholars in the field. Indeed, its lively and engaging style makes it accessible to all educated people." —Harold J. Berman, Emory University

"John Witte has provided an excellent interdisciplinary review of the American experiment in religious liberty. He ably integrates the law, the history, and theology from colonial times to the latest issues before the Supreme Court."
—Douglas Laycock, University of Texas, Austin

"How fortunate is the reader to be provided with an 'introduction' of this character: comprehensive, systematic, penetrating, ironic, and throughout magnificently clear. Because the subject is complex, the reader will welcome the author's steady determination to see the reader is neither lost nor confused. The ample notes are there not to impress, but to guide; it would be difficult to exaggerate their pedagogical utility, or that of the appendices. The bibliography tells us what we already know: Witte has read it all."
—Edwin S. Gaustad, University of California, Riverside

“Witte does a masterful job in compressing a complex and controversial story into a lucid and engaging narrative. This book illuminates, excites reflection, and invites a reappraisal of the essential rights and liberties of religion in America.” —Journal of Church and State

“A close examination of the context in which the United States committed itself to religious freedom, a valuable presentation of the Supreme Court decisions that have advanced or retarded the great project of religious freedom, and a striking measurement of present American law by international human rights law … A rich resource to be mined, a fair and friendly guide offering directions to the perplexed of good will, and a reasoned and robust call to redress the present balance.”
—John T. Noonan, Jr., United States Court of Appeals

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Product Details

  • ISBN-13: 9780813344751
  • Publisher: Westview Press
  • Publication date: 7/27/2010
  • Edition description: Third Edition, Third Edition
  • Edition number: 3
  • Pages: 384
  • Sales rank: 814,723
  • Product dimensions: 6.10 (w) x 8.90 (h) x 1.00 (d)

Meet the Author

John Witte, Jr., is the Jonas Robitscher Professor of Law and Ethics, Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University in Atlanta. A specialist in legal history and religious liberty, he has published twenty-three books, ten journal symposia, and 150 professional articles, and has lectured throughout North America, Europe, Israel, Japan, and South Africa.
Joel A. Nichols is Associate Professor of Law at the University of St. Thomas in Minneapolis. He holds degrees in both theology and law, and he has authored a dozen articles and book chapters addressing the intersection of theology and religion with constitutional law, human rights, and family law.
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Table of Contents

Tables, Figures, and Appendices xi

Preface xiii

Introduction xix

1 The American Experiment in Historical Context 1

The First Millennium 3

The Papal Revolution 6

The Protestant Reformation 9

Religious Establishment versus Religious Freedom 12

Colonization and Experimentation 14

2 The Theology and Politics of the Religion Clauses 21

Puritan Views 22

Evangelical Views 26

Enlightenment Views 29

Republican Views 33

Summary and Conclusions 36

3 The Essential Rights and Liberties of Religion 41

Liberty of Conscience 41

Free Exercise of Religion 45

Religious Pluralism 46

Religious Equality 49

Separation of Church and State 51

Disestablishment of Religion 57

Interdependence of Principles 63

4 Forging the First Amendment Religion Clauses 71

Religion and the Continental Congress 71

The 1787 Constitutional Convention 76

Ratification and Proposed Amendments 79

Drafting the First Amendment Religion Clauses 81

"Original Intent": Interpreting the Final Text 89

Summary and Conclusions 103

5 Religious Liberty in the States Before 1947 and the Creation of a New National Law on Religious Liberty 109

Liberty of Conscience and Free Exercise 110

Religious Pluralism and Equality 113

Separation of Church and State 114

No Establishment of Religion 115

Faith, Freedom, and the Frontier 118

Fundamental Religious Liberty and Incorporation 122

Summary and Conclusions 127

6 The Free Exercise of Religion 131

Mapping Free Exercise Doctrine 132

Free Exercise and Polygamy (1879-1890) 140

Free Exercise and Conscientious Objection (1918-1971) 143

Freedom and Equality of Religious Expression (1940-2002) 145

Liberty of Conscience and Free Exercise Exemptions (1943-1989) 150

Neutralizing the Free Exercise Clause (1982-1993) 155

Free Exercise in the Age of Statutes 160

Summary and Conclusions 162

7 Modern Establishment Law: Mapping the Doctrinal Terrain 169

Bringing an Establishment Clause Case 170

Mapping the Establishment Clause Cases 173

Summary and Conclusions 186

8 Religion and Public Education: No Establishment of Religion, but Equal Access for Religion 191

Separationist Cases (1948-1987) 192

Equal Access Cases (1981-2001) 198

Summary and Conclusions 204

9 Government and Religious Education: Accommodation, Separation, and Equal Treatment 207

Accommodationist Cases (1908-1986) 208

Separationist Cases (1971-1985) 210

Equal Treatment Cases (1983-2004) 214

Summary and Conclusions 220

10 Religion and Public Life 223

Sabbath Day Rules (1961) 224

Legislative Chaplains (1983) 226

Religious Symbols (1984-2010) 227

Summary and Conclusions 237

11 Religious Organizations and the Law 241

Religious Polity and Structures 243

Religious Property Disputes 244

Employment, Taxation, and More 253

Summary and Conclusions 259

12 Toward an Integration of Religious Liberty: The American Experiment in International Context 263

International Norms and the Constitution 265

The International Framework of Religious Liberty 271

International Norms and American Laws Compared 276

Summary and Conclusions 282

Concluding Reflections 287

Appendix 1 Drafts of Federal Religion Clauses (1787-1789) 295

Appendix 2 State Constitutional Provisions on Religion (as of 1947) 299

Appendix 3 United States Supreme Court Decisions Relating to Religious Liberty 305

Index 339

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