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  • The Spirit of the Law: Religious Voices and the Constitution in Modern America
  • Martin E. Marty
The Spirit of the Law: Religious Voices and the Constitution in Modern America. By Sarah Barringer Gordon. (Cambridge, MA: Belknap Press of Harvard University Press. 2010. Pp. xii, 316. $29.95. ISBN 978-0-674-04654-2.)

Given the author's attention to and repetition of the phrase "the new constitutional world" (starting on p. 1), Sarah Barringer Gordon, a law and history professor at the University of Pennsylvania, is clearly seeking and should win a patent on the invention. An invention is something one finds or makes, and Gordon does both. She finds that this "world" has existed since the 1940s but has needed a name, and she also makes it by providing a framework for interpreting the U.S. Constitution and then building on that framework by presenting five chapter-length case studies.

The world she discusses implies but is not focused on the whole Constitution; in fact, some U.S. Supreme Court decisions of 1940 and especially [End Page 865] 1947, her concern, dealt chiefly with the religion clauses of the First Amendment to the Constitution. Readers of this review in Myanmar, Vladivostok, or even some U.S. cities may need to be informed or reminded that the Establishment clause reads: "Congress shall make no law respecting an establishment of religion." From 1789 until 1940, only two explicitly religious cases had been settled at the Supreme Court level, and they were argued on grounds other than those in this clause. During that period, religious legal judgments were left up to the several states.

The Everson v. Board of Education case "incorporated" the substantive provisions of the Bill of Rights to limit state and local governments as they had in the historic federal cases. This was new. Since the original Bill of Rights stipulated that there be no state establishments of religion, the new understanding or declaration had to be controversial. With "incorporation," everything—from using public funds to transport children to parochial schools to allowing for special arrangements for religious education and displays on public property—was up for grabs federally, and many grabbed. Most decisions on the new grounds were unpopular on the local level—the setting of the battle scenes covered by Gordon. They have been bloody.

The author quotes Alliance Defense Fund litigator Jordan Lorence: "Every time religion is denied in one place, it squirts up in another" (p. 295). The chosen squirted-up cases receive mention in the book's final paragraph: "The constitutional practice that drew Jehovah's Witnesses, Protestants devoted to separation of church and state, the Nation of Islam, conservative evangelical women, and progressive clergy to law has become a staple of religious life over the past seven decades" (p. 216). Staple? Yes. Stable? No, Gordon herself judges this new world to be unstable.

She isolates the problem of definition as a plague in the "new constitutional world," which has become old, and is in danger of being "bull-dozed." More and more legal and religious scholars point out that it is difficult if not impossible to define religion, and even attempts to define whatever it is are themselves religious acts. A fair-minded scholar, she shares the uneasiness of many citizens with the effects of living in this "new-old" world. At the end, however, she calls on former Justice Sandra Day O'Connor, who said that, for all the flaws and the controversies, the system "worked." Gordon is not so sure that in many respects it has been a success, but judges, with O'Connor, that it has helped the polity and citizens within it to sustain a subworld marked by religious tolerance on a global stage in which all alternatives are destructive. So: "Two Cheers for the New Constitutional World," ill-defined and unstable though much in it may be. [End Page 866]

Martin E. Marty
University of Chicago


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