The Supreme Court and Religion in American Life. Vol. I: The Odyssey of the Religion Clauses; Vol. II: From "Higher Law" to "Sectarian Scruples" (review)

In this two-volume work, Professor James Hitchcock first provides a comprehensive survey of the Supreme Court's decisions concerning religion. He then evaluates and critiques the Court's decisionmaking, especially in the contemporary period.

In Volume I, Professor Hitchcock offers a historical survey of the Supreme Court's religion cases, from the Court's earliest decisions to those of the Rehnquist Court. He attempts to describe every case, whether prominent or obscure, offering what he calls "the most comprehensive survey of the religion cases that has yet been published"(p. 1). Hitchcock discusses cases arising not only under the Religion Clauses of the First Amendment, i.e., the Free Exercise and Establishment Clauses, but also under the Free Speech Clause, other constitutional provisions, common-law doctrines, and statutes. All in all, he describes nearly 300 cases, drawn from a wide variety of contexts. In so doing, he highlights many decisions that are frequently overlooked, including decisions not relying on the Religion Clauses. For example, the Dartmouth College case of 1819 rested on the Contract Clause, but Hitchcock maintains that it served to protect the liberty of organized religious groups and, in particular, to promote the proliferation of religiously affiliated colleges.

This volume is a valuable historical resource, albeit one that is not without shortcomings. To the legally trained eye, the book's case discussions are generally accurate, but not precisely so in every particular. (For example, some cases decided under the Free Speech Clause are described at times as cases grounded on the Free Exercise Clause.)More generally, the principal strength of this volume—its comprehensive coverage—may also be its principal weakness. Hitchcock provides a helpful synthesis and historical analysis in his conclusion, but the volume lacks an introductory summary, and its chapters are rather loosely organized, in part by topic and in part by historical period, creating something of a potpourri at times. More to the point, the volume may pursue comprehensiveness to a fault. Many of the cases discussed are interesting and significant, but many of the others are obscure for good reason. As a result, some of the discussion is tedious.

Volume II, standing alone, is an extremely impressive work. With clear thematic organization and rich documentation, Hitchcock discusses and analyzes the Supreme Court's understanding of the Religion Clauses and of religion itself. He explains that throughout most of American history, the Court, like society generally, accepted a broad public role for religion, but that the Court's approach shifted dramatically in the 1940's, with the Court expanding certain aspects of private religious liberty but substantially contracting the permissible role of public religion. Hitchcock documents the personal religious histories of the justices, from John Marshall to the Rehnquist Court, and he suggests that the separationist justices of the 1940's may have been influenced by their personal estrangement from religion, leading them to support a jurisprudence resting in part on the view that religion is radically subjective, irrational, divisive, and potentially dangerous. He systematically criticizes these assumptions about religion, as well as the Court's asserted reliance on the original intent of the framers, including what he regards as an undue emphasis on the views of Madison and Jefferson. In his conclusion, Hitchcock extends his focus beyond the Supreme Court, offering a provocative and far-reaching critique of various strands of contemporary liberal theory, including especially those strands that promote a liberalism that is "comprehensive" as opposed to merely "political."This is an important work that deserves close attention.