Religion and the Constitution

Overview

This course thematically explores the place of religion in the U.S. Constitution, approaching this question with a mixture of constitutional law, political theory, and history without being tied to any one of these three. We begin by examining Supreme Court cases, but we depart from constitutional law in asking what the law should be (in addition to what it is or is likely to be). This course has an aspect of political theory insofar as it deals with fundamental questions, but our examination of these questions is guided by how they were developed historically, primarily by statesmen and pamphleteers rather than by philosophers. And while this gives the course a historical flavor, we are interested primarily in drawing lessons from that history for application to contemporary problems rather than in the history as such.

The course begins with an analysis of constitutional law, primarily as it relates to the free exercise and establishment clauses of the First Amendment. This requires an ability to read and understand the majority’s holding, but equally important are the dissents. In part, this is because they shed light on what the majority opinion is saying. As our primary concern is the ability to assess the quality of the majority’s arguments independently, however, the dissents are also important for presenting multiple points of view on a particular question.

Many of the readings for the unit on constitutional law are from a casebook, available via online course reserves. Other important cases have been decided since that casebook was published; abridged versions of these cases are also available via the online course reserves. For your reference, the full text of these cases is available online from websites such as findlaw.com, justia.com, and heinonline.org.

Attentive students can expect to leave this course with a deepened understanding of the questions which retain their salience in American political life and an increased facility in speaking about the fundamental principles of the United States and its government. This possibility presumes a good working knowledge of the basic structures of the federal government and of American political development. Since this is a course in ideas more than in facts, assessment will be by journals and an essay rather than multiple-choice exams.

Understanding ideas requires an engagement with them, something that can be had only by questioning and discussion; as such, class discussion is more than just encouraged, it is imperative. In order to facilitate this discussion, I will direct your attention before each class to certain questions of particular importance.

Required Texts

The Sacred Rights of Conscience. Ed. Daniel L. Dreisbach & Mark David Hall. Indianapolis: Liberty Fund, 2009. ISBN: 9780865977150
Protestantism and the American Founding. Ed. Thomas S. Engeman & Michael P. Zuckert. Notre Dame, Ind.: University of Notre Dame Press, 2004. ISBN: 0268027684
Erwin Chemerinsky. â€œFirst Amendment: Religion.â€ Chapter 10 in Constitutional Law. New York: Aspen Publishers, 2001. Online e-reserve.
John Locke. A Letter Concerning Toleration. Ed. James Tully. Indianapolis: Hackett, 1983. ISBN: 091514560X
Court cases not included in the Chemerinsky casebook are available in abridged versions through the online e-reserve; the full text of these cases may be retrieved from from findlaw.com, justia.com, and heinonline.org.

Grading

55% Class Journal.
25% Attendance and Class Participation.
20% Research Essay.

Journal Writing

Journal Entry

A journal entry will be due every Tuesday at the beginning of class. Each journal entry should be at least 600 words long (roughly two double-spaced pages). Each entry must be submitted both to the discussion board on Blackboard and through SafeAssign. Submissions to the discussion board should be in plain text (i.e., not by file attachments) and under the discussion topic for the due date; each student’s submission should form a separate thread in that discussion topic. No late submissions or submission by email will be accepted, as this would frustrate the goal of generating discussion of the journal entries.

The journal entry should be a statement of your thoughts about the reading assignment for that week (the Tuesday on which the assignment is due and the following Thursday). The purpose is to show your intellectual struggle with the material. Do you understand what the author is saying? If so, do you agree or disagree? Why? If you do not understand what the author is saying, what is it that you find confusing?

Intellectual struggle requires a logical analysis of the arguments. What is the issue? What position is the author taking on that issue? What arguments does the author develop to support that position? What are the strengths and weaknesses in those arguments? Are their arguments ultimately persuasive or not? Those are the kind of questions you must consider in analyzing the arguments. You should not fill up your journal entry by merely summarizing, paraphrasing, or quoting from the reading.

You are free to introduce whatever you find pertinent—including ideas from your personal experience and ideas from other classes you have taken—whatever helps you to make sense of the issues raised in the readings. Keep in mind that everyone in the class can read your entry, so do not include anything that you would not want (or would not be appropriate for) everyone to read. Integrating ideas from our class discussions into your writing is important. Again, the purpose is to write a statement of your thoughts about the reading assignments that show your intellectual struggle with the material and with the questions raised by that material.

The reading for each week will suggest many issues that might deserve comment. But generally it is best for your journal entry to concentrate on just one issue that you can develop in two pages.

Journal Responses

Students will be assigned to journal groups comprising three students. Students will be assigned to new groups after September 23 and October 28.

Journal responses will be due every Thursday at the beginning of class. Every Thursday you will turn in two responses, one to each of your groupmates’ journal entries from the previous Tuesday. Each response must be at least 300 words long (roughly one double-spaced page). Post each response in plain-text format as a reply to the thread that houses the journal entry you are responding to. Indicate plainly that this reply counts as your journal entry.

If a member of your journal group did not submit their entry by the beginning of Tuesday’s class, post a new thread in that week’s discussion topic to that effect. Be sure to do this, as it shows that you are following the discussion and reminds me to give you credit for having tried to complete the assignment. You will not be penalized when you cannot write a response because you have not received a journal entry from one of your journal group members. As I am not tolerant of late submissions, you should not feel obligated to respond to a late submission.

The journal responses will be your written responses to the journal entries of the other two people in your group. The purpose of the journal response is to intellectually engage your fellow students. How does their handling of the reading assignment compare with yours? What did they see that you did not see? Sometimes you will disagree, but don’t be too negative. Even if you disagree with a journal entry, try to find some way to help that fellow student think through the issues. You want to sustain a lively intellectual exchange with your fellow students in which everyone learns something from the exchange. You want to struggle together in thinking through the issues.

You are of course free to read and respond to other people’s journal entries, provided that you respond to your groupmates. You can also respond to your groupmates’ responses to your entry. You should keep things civil, including respecting the rights of others not to respond to your points. Also keep in mind that insulting a person’s argument will always be understood as an insult to the person directly, and I will severely penalize those who are hostile toward their classmates either on the discussion board or in class.

Grading Criteria

To deal with emergencies (illness and so on), you will be permitted to miss one journal entry and one set of journal responses without any penalty. You will receive a grade for your journal writing three times over the course of the semester. The first grade will cover the entries and responses submitted through September 23, the second from September 28 through October 28, and the third November 2 through the end of classes.

In order to earn a satisfactory grade of “C,” students will have to turn in all of their journal writing assignments; show some logical analysis of the texts that goes beyond merely summarizing or quoting from them; avoid errors in spelling, diction, punctuation, and grammar; and write journal responses that seriously engage the journal entries from the other group members.

In order to earn a good grade of “B,” students should develop one or two major topics in each journal entry rather than writing superficially about many topics, develop their own line of reasoning about religion and the Constitution over the course of the semester in response to the readings and the class discussions, organize their writing clearly, and occasionally show how the readings relate to material previously covered in class.

Students who wish to excel and earn an “A” must take clear positions on the controversies in this class, support their positions with evidence and arguments, and regularly probe the deeper implications of the issues raised in the readings and class discussions beyond what is clear on the surface.

Attendance & Participation

It is expected that you attend every scheduled class and participate knowledgeably. Attendance will be taken before the start of each class. Students not in their seats when attendance is taken will be considered absent. Students who leave class early without prior permission will also be considered absent for that class.

This course centers around ideas that are found in classic texts of American government and politics. It is vital, therefore, that you read the assigned texts at least once before we discuss them in class. We will focus on the arguments presented in these texts and, just as importantly, what arguments were not made and why. Some assumptions are left unquestioned, for example, because they are shared by all mainstream participants in the debate. At other times, something is not stated precisely because it would be controversial, or because it would reveal that the author is begging the question. Able readers will be on the lookout concerning questions such as these, without losing sight of what is more readily apparent on the surface of the arguments.

Fruitful participation includes answering questions intelligently, probing and challenging what is said in a manner that shows knowledge and understanding of the text, and otherwise advancing the level of discourse in the class.

Students may earn a “C” by attending almost every class session and complying with basic expectations of decorum. Those who participate intelligently almost every week can expect to earn a “B” for this portion of their grade. Students who contribute to almost every class in a fruitful manner can expect to achieve an “A” for their attendance and participation.

Research Essay

By the end of October, I will distribute a list of possible essay topics. If you wish to write on a topic not on this list, you must get my approval first. Essays should be roughly 3000 words (ten double-spaced pages) in length and submitted through Blackboard by November 23 by 5:00pm. All essays will be run through SafeAssign.

Essays will be graded on the ideas they contain, but good organization and grammar are essential to getting those ideas across. All written work should conform to the rules of standard English, and students should also expect that better-written work will get a higher grade. Poorly-written work will suffer. A good (and brief) guide for avoiding the most common grammatical and stylistic pitfalls is The Elements of Style, by William Strunk and E. B. White.

Essays will warrant a “C” if they are clear enough that I immediately discern which issue you are addressing, your thesis regarding that issue, and what arguments persuade you to think that way. Short or impenetrable essays will receive a “D” or an “F”. Students desiring a “B” will support their thesis with a variety of arguments, ground those arguments firmly in the texts discussed in class, and conduct relevant library research. In order to earn an “A,” you must demonstrate real understanding of the issue and of the reasons why people disagree with your thesis.

Essays will be penalized 3% per day if submitted late, including weekends and holidays, up to a maximum penalty of 21%. All essays must be submitted by the last day of class to be counted.

Course Expectations and Policies

ACADEMIC DISHONESTY: All work must be the produce of the student’s own original effort. It is the student’s responsibility to familiarize him- or herself with university policy regarding plagiarism and academic dishonesty. Students should take the university’s Academic Integrity tutorial (http://www.ai.niu.edu/ai/). Those uncertain how to avoid plagiarism should consult the resources that the Political Science Department has made available on its website (http://polisci.niu.edu/polisci/audience/plagiarism.shtml).All work will be run through SafeAssign. All infractions will be severely punished: a failing grade for the course and possible disciplinary action by the University.

APPOINTMENTS: I can arrange to meet students by appointment if the above office hours are inconvenient. Students are encouraged to come to office hours to further discuss course material or any problems they might be having in the course. It is best to discuss incipient problems before they become large ones.

THANKSGIVING: Thanksgiving Break begins on November 24; we will hold our scheduled class on November 23. Students absent on this day of class without a documented excuse of an emergency nature will be treated as though they had cut five classes.

CANCELLATIONS: If I am more than fifteen minutes late to class, you may assume that I have been delayed and that class is cancelled. Leaving earlier than this risks being marked absent.

DECORUM: Use your common sense. Turn off your cell phone. Do not insult or threaten anybody, or use abusive language. Do not eat—it only makes the rest of us hungry. Refrain from private discussions, interrupting people, texting, surfing the internet, sleeping, and in general anything that would disrupt or distract the class.

INCOMPLETES: Incompletes will be given only in rare circumstances, such as illness, death in the immediate family, or other unusual and unforeseeable circumstances. Incompletes are given at the discretion of the instructor and only when it is possible that the completion of the remaining work could result in a passing grade. An incomplete must be resolved within the appropriate time limit or it will automatically be changed to an F. The student is responsible for seeing that incompletes are made up before the expiration date.

DISABILITIES: Under Section 504 of the Rehabilitation Act of 1973, NIU is committed to making reasonable accommodations for persons with documented disabilities. Students who believe that their disability may have some impact on their coursework and for which they may require accommodations should notify the Center for Access-Ability Resources (CAAR) on the fourth floor of the Health Services Building. CAAR will assist students in making appropriate accommodations with course instructors. It is important that CAAR and the instructor be informed of any disability-related needs during the first two weeks of the semester.

AWARDS: The Department of Political Science will recognize, on an annual basis, outstanding papers written in conjunction with 300-400 level political science courses or directed studies. Authors do not have to be political science majors or have a particular class standing. Winners are expected to attend the Department’s spring graduation ceremony where they will receive a certificate of $50.00. Papers, which can be submitted by students or faculty, must be supplied in triplicate to the department secretary by the end of February. All copies should have two cover pages — one with the student’s name and one without the student’s name. Only papers written in the previous calendar can be considered for the award. However, papers completed in the current spring semester are eligible for the following year’s competition even if the student has graduated.

POLITICAL SCIENCE WEBSITE: Students are encouraged to consult the Department of Political Science website on a regular basis. This central source of information will assist students in contacting faculty and staff, reviewing course requirements and syllabi, exploring graduate study, and researching career options. Undergraduates may find this website especially useful in tracking down department events and for accessing important details related to undergraduate programs and activities. To reach this site, go to http://polisci.niu.edu/.

Class Schedule

OCR = Online Course Reserve
SRC = Sacred Rights of Conscience
PAF = Protestantism and the American Founding

08/24 Introduction

Unit I. The Court’s Treatment of the First Amendment

08/26 The Meaning of Free Exercise

Chemerinsky, pp. 1237-40, 1246-55, 1262-66. [OCR]
Study Questions:

Why was the free exercise clause not applied to the states until 1940?
What limits are there to the free exercise of religion? What limits should there be?
Why is religion treated differently from other forms of belief? How is it treated differently?
Why did the Supreme Court find the way it did in Lukumi Babalu Aye v. Hialeah?

08/31 Religious Exemptions from the Laws

Chemerinsky, pp. 1240-66. [OCR]
Study Questions:

Does the free exercise clause provide a constitutional right to be exempt from selective service? Compulsory school attendance?
Why is Smith v. Oregon considered to have altered the law regarding religious exemptions from secular laws?
If the state’s interest in combatting recreational drug use trumps the free exercise of religion regarding ceremonial drug use, why does the state’s interest in educating its children not trump religious conviction?
What is the difference between an exemption that the Constitution requires and one that is explicitly stated in a statute?

09/02 [Writing Workshop]

Graduate assistant-led discussion of essay writing at the university level.

09/07 Disestablishment Law

Chemerinsky, pp. 1266-71, 1275-81. [OCR]
Study Questions:

Why was the application of the establishment clause to the states more controversial than the application of the free exercise clause?
Why are there competing theories regarding the meaning of the establishment clause? How can there be ambiguity in the Constitution’s meaning?
Does neutrality among religions require that the government be neutral regarding the question of religion versus irreligion?
When does government action offend the establishment clause?

09/09 [Class Cancelled]

09/14 Public Displays with Religious Components

Chemerinsky, pp. 1271-75; 1305. [OCR]
Lynch v. Donnelly, 465 U.S. 668 (1984). [OCR]
Van Orden v. Perry, 545 U.S. 677 (2005). [OCR]
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). [OCR]
Study Questions:

If the First Amendment was ratified in 1791 and the establishment clause was applied to the states in 1947, why were public religious displays not invalidated until 1989?
Does the presence of symbols from more than one religion in a public display make the display less offensive to the establishment clause? Should it?
If tradition has made the phrase “In God We Trust” a part of our secular heritage, why does the same argument not apply to Christmas displays?
How was the monument of the Ten Commandments in Van Orden v. Perry different from that in McCreary County v. ACLU?

09/16 School Prayer

Chemerinsky, pp. 1288-1305. [OCR]]
Elk Grove Unified School Discrict v. Newdow, 542 U.S. 1 (2004). [OCR]
Study Questions:

Is a prayer offered by the principal different from one offered by a student selected by the principal? What if students select the one to offer the prayer?
At what point does a student-led prayer run afoul of the establishment clause?
Why may the Nebraska legislature retain a chaplain while prayer is forbidden in Nebraska public schools?
If nondenominational, nonsectarian prayers or moments of silence were permissible, would they be desirable?
Why did the Supreme Court decide Elk Grove Unified School District v. Newdow on the question of standing rather than on the merits of the case? How do the Supreme Court’s precedents suggest the question of the pledge of allegiance should be decided?

09/21 Anti-religious Discrimination?

Chemerinsky, pp. 1282-92, 1305-23. [OCR]
Locke v. Davey, 540 U.S. 712 (2004). [OCR]
Study Questions:

Must a school that receives state money prevent religious organizations from utilizing its facilities? May a school choose to do so?
Can a university fund student organizations without discriminating against religious groups and without using public funds for the promotion of religion? What should be the relative weight given to these values?
Why has the Supreme Court permitted more state aid to flow into parochial schools, overruling past cases that found such aid to violate the establishment clause? Could a functioning parochial school system exist under the Court’s earlier rulings?

09/23 Is Accommodation Required, Permitted, or Prohibited?

Michael W. McConnell, “Accommodation of Religion.” [OCR]
Suzanna Sherry, “Lee v. Weisman: Paradox Redux.” [OCR]
Mark Tushnet, “The Emerging Principle of Accommodation of Religion (Dubitante)” [OCR]
Study Questions:

How does a religious exemption from a law (like selective service, compulsory education, or drug use) differ from the sorts of things that offend the Court’s disestablishment doctrines? Does it?
If the establishment clause prohibits only coercive actions, what does it add to the free exercise clause? If it on the other hand prohibits the public accommodation of religion, how can religious minorities be guaranteed the free exercise of their religion?
Does it make a difference whether the religion to be accommodated is that of the majority or a minority?

09/28 Evolution, The Big Bang, Creationism, and Intelligent Design

Chemerinsky, p. 1304. [OCR]
Edwards v. Aguillard, 482 U.S. 578 (1987). [OCR]
Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005). [OCR]
Study Questions:

Why does the teaching of creation science offend the establishment clause? Why would intelligent design theory be different? Why did the federal court rule that it is not?
Should the level of confidence in the theory of evolution be a factor in deciding whether intelligent design or creation science may be taught in a public school?

09/30 Faith-based Initiatives and School Vouchers

Chemerinsky, pp. 1306-20, 1323-24. [OCR]
Zelman v. Simmons-Harris, 536 U.S. 639 (2002). [OCR]
Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007). [OCR]
Study Questions:

Why might school voucher programs that involve religious schools be constitutional? Why might programs that excluded religious schools be unconstitutional? Why did the Supreme Court rule the way it did in Zelman v. Simmons-Harris?
How are school voucher programs analogous to faith-based initiatives?
Are faith-based initiatives consonant with the establishment clause? Are they sound public policy?
Why did the Supreme Court decide Hein v. Freedom From Religion Foundation on the question of standing rather than on the merits of the case?

Unit II. The Theory of Church-State Relations

10/05 Biblical Passages Regarding Government

Sacred Rights of Conscience, pp. 4-15.
Study Questions:

Does the Bible speak to issues regarding politics? If not, how can it guide an individual’s life? If so, how can an individual be faithful without upsetting the political order? Is there a difference between the Jewish and Christian canons on this point?
Why might the question of original sin be of interest to political theorists?
What does the Bible command be done with idolaters? Non-believers? Heretics? Schismatics? Blasphemers? Adulterers? Fornicators?
What does the Bible say about monarchy? Democracy?

10/07 The Tradition of Christian Submission

Martin Luther, “Temporal Authority: To What Extent it Should Be Obeyed” [SRC 19-21]
The Schleitheim Confession of Faith [SRC 21–24]
John Calvin, Selections from “Institutes of the Christian Religion” [SRC 24–27]
The First London Baptist Confession of Faith [SRC 34–35]
Jonathan Mayhew, “A Discourse Concerning Unlimited Submission” [OCR]
Jonathan Boucher, “On Civil Liberty, Passive Obedience, and Non-resistance” [OCR]
Study Questions:

How does the doctrine of Christian submission differ from the theory of government announced in the Declaration of Independence?
Among those who urge Christian submission, under what circumstances is resistance justified? How is one to know to whom one must submit?
Is there a relationship between Christian submission and religious toleration?

10/12 Orthodox Theology as Source of Law

Selections from Augustine [SRC 16–17]
Selections from Aquinas [SRC 17–19]
Act of Supremacy; Act of Settlement; Articles of the Church of England [SRC 27–30]
Richard Hooker, Selection from “On the Laws of Ecclesiastical Polity” [SRC 30–33]
Westminster Confession of Faith [SRC 36–39]
Selections from Blackstone [SRC 62–76]
Study Questions:

Why might it be permissible to compel religious uniformity?
What is the relationship between the religious leader and the secular political leader according to these texts?

10/14 European Roots of Toleration

Thomas Hobbes, Selection from Leviathan [SRC 39–42]
William Penn, Selection from “The Great Case of Liberty of Conscience” [SRC 42–46]
Locke, A Letter Concerning Toleration
Study Questions:

How can religious principles lead one to advocate religious toleration without accepting secular liberalism?
Why doesn’t Locke refer to religious principles in defining a church or a state?
How is Hobbes’s argument that the sovereign may impose religious uniformity amenable to being transformed into Locke’s argument that the magistrate may not impose religious uniformity?
Do the principles of religious toleration demand that toleration be extended to all, or is it coherent to tolerate only those whose religious errors are minor or easily correctable?

10/19 Disestablishment, Toleration, and Acceptance

Toleration Act (1689) [SRC 51–55]
Selections from Montesquieu [SRC 60–62]
Jonas Proast, “The argument of the Letter concerning toleration” [OCR]
Study Questions:

How can religious toleration be reconciled to an established church?
Does religious toleration or disestablishment require that one accept other religions as worthy of respect?
Where does Proast fit into the question of religious toleration?

10/21 American Arguments About Toleration and Establishment

John Cotton, “A Discourse about Civil Government” [SRC 133–46]
Roger Williams, “The Bloudy Tenent, of Persecution, for Cause of Conscience” [SRC 149–55]
Nathaniel Ward, “The Simple Cobbler of Aggawam in America” [SRC 155–65]
Elisha Williams, “The Essential Rights and Liberties of Protestants” [SRC 173–79]
Thomas Reese, “An Essay on the Influence of Religion in Civil Society” [SRC 316–35]
Study Questions:

What are the strengths and weaknesses of John Cotton’s argument that only church members should have the right to vote and hold office?
To what extent are Roger Williams’ arguments derived from biblical authority? To what extent are they derived from social contract theory?
What are Nathaniel Ward’s arguments against the permissibility of religious toleration and how do they stack up against Roger Williams’ arguments in its favor?
Are the various attempts to chart a moderate course between toleration and disestablishment persuasive?

Unit III. Drafting the Constitution

10/26 Colonial and State Laws Regarding Religious Establishments and Toleration

Memorial from Clergy of the Established Church, Virginia [SRC 270–72]
Worcestriensis, Number IV [SRC 273–76]
Madison, “Memorial and Remonstrance Against Religious Assessments” [SRC 309–13]
Ch. 2. Constitutions, Declarations, and Acts in Colonial America [SRC 83–121]
Ch. 4. Continental and Confederation Congresses [SRC 215–38]
Ch. 5. State Constitutions, Laws, and Papers [SRC 239–65]
Study Questions:

What changes took place in the approach Americans took toward toleration and establishment from the founding of the colonies to the post-revolutionary reforms of state constitutions? (pay special attention to New England and Virginia)
What kinds of variety existed between colonies regarding the questions of toleration and establishments? What explains this variety?
To what extent were laws in favor of toleration tied to the disestablishment of religion? To what extent were they separate?
Is it fair to say that there was a general consensus in the states in favor of religious toleration at the time of the Founding? What about disestablishment?

10/28 The Constitution’s Ban on Religious Tests

Petition for Equality by the Philadelphia Synagogue [SRC 294–95]
Ch. 8. The Religious Test Ban of the U.S. Constitution [SRC 366–404]
Study Questions:

What controversies were there over the ban of the use of religious tests at the constitutional convention?
How is the ban on religious tests compatible with the requirement that officeholders take oaths to support the Constitution?
Why does the Constitution ban religious tests only for offices under the United States, not for state offices?

11/02 Creating the First Amendment

Ch. 9. The First Amendment to the U.S. Constitution [SRC 405–38]
Study Questions:

How did the First Amendment change the federal government’s authority regarding religion? How did it change the states’ authority?
How were issues relating to the free exercise of religion and the establishment thereof linked in debates leading up to the First Amendment? How were they separate?
How were arguments in favor of the First Amendment related to social contract theory? How were they related to Christian charity?
What do the alternate ways of phrasing a constitutional protection for religious liberty and establishment teach us about how the First Amendment was likely understood when it was ratified?
Why was a religious exemption from military service removed from what would become the Second Amendment?
Is Joseph Story’s commentary on the First Amendment a good one?

11/04 The Rhetoric of the Wall of Separation Between Church and State

Ch. 12. Thomas Jefferson and the “Wall of Separation” [SRC 520–36]
Study Questions:

What did Jefferson mean regarding a wall of separation between church and state?
To what extent were Jefferson’s sentiments expressive of the best arguments regarding the relationship between religion and politics?
To what extent were Jefferson’s sentiments representative of various views of the First Amendment at the time it was ratified? Does Jefferson’s view rely upon the First Amendment, or would he have advanced it had the Constitution lacked the Bill of Rights?
How has Jefferson’s metaphor impacted constitutional law? Was this impact beneficial or pernicious?

Unit IV. Religion and Early American Political Culture

11/09 Religion and Public Policy in the Early Republic

Thomas Jefferson, Notes on the State of Virginia, Queries 17 & 18 [SRC 290–94]
Ch. 10. Religion and the Public Policy and Culture of the New Nation [SRC 441–77]
Study Questions:

How does the role of religion in the early republic bolster the argument that the disestablishment clause should be incorporated against the states as implicit in the concept of ordered liberty? How does it weaken that argument?
How do the practices of the early republic mesh with the expressions of toleration and disestablishment codified in the Constitution and state laws?
Did the extent to which religion penetrated into public policy change with the adoption of the Constitution and the Bill of Rights?

11/11 Christianity and the Common Law

Ch. 13. Christianity, the Common Law, and the American Order [SRC 537–86]
Study Questions:

What would it mean for Christianity to be a part of the common law? What is at stake regarding Jefferson’s argument that it is not?
What does the history of Parliament in England have to do with the role of Christianity in American democracy?
If Christianity were a part of the common law, would the First Amendment and the various disestablishment provisions in the state constitutions mean that the common law (or a part of it) is unconstitutional?

11/16 References to God & Christianity in the Constitution

Ch. 7. References to God and the Christian Religion in the U.S. Constitution [SRC 346–65]
Study Questions:

What is the significance of the absence of an explicit acknowledgement of God and the Christian religion from the Constitution?
Why was an explicit acknowledgement of God and the Christian religion not among the first amendments to the Constitution?
How would the inclusion of such an acknowledgement have affected the meaning and scope of the First Amendment?

11/18 The Election of 1800

Ch. 11. Religion and Politics in the Election of 1800 [SRC 478–519]
Study Questions:

Does the ban on religious tests make it imperative to make a candidate’s religious scruples a campaign issue, or does it enshrine a principle declaring these to be irrelevant?
Does the importance of a candidate’s religious beliefs wax or wane with a constitution’s adhesion to secularism?
What trade-offs are involved in permitting or discouraging religion’s relevance in political contests when it comes to peaceable elections, popular representation, and public policy?

Unit V. Reflection on the American Experiment

11/23 Early Reflections

John Witherspoon, “Sermon Delivered at a Public Thanksgiving after Peace” [SRC 278–90]
Ch. 14. Reflections on the American Church-State Experiment. [SRC 588–621]
Research essay due today at 5:00pm
[Do not miss this class; see policy, above]
Study Questions:

If the First Amendment was not a statement against established religion at the state level, why did all of the states disestablish religion in the years following its ratification?
What was the perceived effect of disestablishment and religious liberty upon religion in the United States?
How did early Americans feel about the effect of disestablishment and religious liberty upon politics?

11/25 [Thanksgiving Break]

11/30 Christianity and American Democracy

Michael Zuckert, “Natural Rights and Protestant Politics.” [PAF 21–75]
Thomas West, “The Transformation of Protestant Theology.” [PAF 187–223]
Study Questions:

How persuasive are the historical arguments Zuckert and West make regarding the role of Protestant Christianity in arguments defending liberal democracy?
How persuasive are the theoretical arguments Zuckert and West make regarding the necessity or incompatibility of Protestant Christianity in arguments defending liberal democracy?

12/02 Contemporary Debates over a Secular America

Seymour Martin Lipset, “Religion and American Values.” [PAF 77–105]
Isaac Kramnick and R. Laurence Moore, “The Godless Constitution.” [PAF 129–42]
Peter Lawler, “Religion, Philosophy, and the American Founding.” [PAF 165–85]
Study Questions:

Is it possible for a society to exist if its members do not receive a moral education that only religion can provide? Or can the needed moral education be provided without religion?
Does a society that fails to promote religious principles necessarily corrode religious attachment, or can a society exclude religious from the public sphere while maintaining a robust private religious life?
If there is a correspondence between Congregationalism and liberal democracy, what does this mean for Presbyterians, Catholics, Baptists, and every non-Christian sect?