Law and Religion, 1790–1920

In 1830, the chronicler Alexis de Tocqueville wrote of the extraordinary power of religion in the young American nation. The enduring vigor of religious expression and its influence at all levels of society have indeed been remarkable. Equally important, however, the growth and increasing importance of religion in American life have occurred in a nation without formal religious establishments. In the 1790s, the beginning of the period covered by this chapter, religious life in the United States was relatively lackluster. The eventual intersection of religious freedom and religious commitment surprised even many Americans. Certainly most nineteenth-century Europeans assumed that established religion was the only way to ensure faith and morality in any country. In the New World and in the new country, Americans learned that the absence of most formal legal protections for religion did not necessarily mean the absence of religion. This lesson was learned over time, and with much backing and filling. Nor has separation of church and state been stable or even comfortable for many believers. Yet any examination of law and religion must begin with the paradox that astounded Tocqueville and has become such a central feature of American life – faith, multiple faiths, have flourished in a country that has an increasingly powerful government but no official faith. The story behind that paradox begins just after the crest of the great constitution-making years of the 1770s and 1780s, with the ratification of the Bill of Rights by the states in 1791. Most important for our purposes are the Establishment and Free Exercise Clauses of the First Amendment, which state “Congress shall enact no law respecting an establishment of religion, or prohibiting the free exercise thereof.”