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  • One Nation Under Law: America's Early National Struggles to Separate Church and State, and: The Founders on God and Government
  • Johann N. Neem (bio)
One Nation Under Law: America's Early National Struggles to Separate Church and State. By Mark D. McGarvie. (DeKalb: Northern Illinois University Press, 2004. Pp. xii, 256. Illustrations. Cloth, $38.00.)
The Founders on God and Government. Edited by Daniel L. Dreisbach, Mark D. Hall, and Jeffry H. Morrison (Lanham, MD: Rowman and Littlefield Publishing, 2004. Pp. xv, 312. Cloth, $80.00; paper,$29.95.)

Mark D. McGarvie's One Nation Under Law is the most innovative recent study of church-state relations in the early republic. McGarvie argues that the separation of church and state resulted from the contract clause of the Constitution, not the First Amendment, and that the separation of church and state was the original intent of the Constitution's Framers. The Framers sought to reconstruct American society along liberal lines, replacing both colonial Christian communitarianism and classical republicanism with a radical new society.

McGarvie enters a vibrant debate about the status of religion in the early republic. Philip Hamburger's recent study argues that the effort to separate church and state did not emerge until the 1830s, and then only as a mechanism by which Protestants denied Catholic institutions public patronage (Separation of Church and State, 2002). Like Hamburger, McGarvie looks beyond the First Amendment to actual institutional relationships, but unlike Hamburger, McGarvie argues that the effort to separate church and state began with the Constitution, a "declaration of war between two groups of Americans harboring contesting worldviews" (15).

"The process of disestablishment," McGarvie writes, was America's "greatest ideological debate" before the Civil War, pitting liberals against communitarians (3–4). To liberals, human beings were naturally good and enterprising if freed from the shackles of the past. Following Joyce O. Appleby, McGarvie argues that Jeffersonian Republicans embraced liberalism and encouraged voluntary relations between free and equal citizens. They believed that a society of free individuals would be self-harmonizing (Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s, 1984). Christian and classical republican communitarians remained wedded to the view that humans were sinful and slothful and only government and religion could maintain social order. These skeptics formed the Federalist Party.

Politics was incapable of solving these metaphysical questions about [End Page 333] human nature but "the law could" (13). Judges relied on the contract clause to transform the social order, replacing a society of inherited status with one in which free individuals voluntarily entered into contractual relations with one another. Contracts became the legal basis for social relations in every state; McGarvie includes chapter-length case studies of New York, South Carolina, and New Hampshire. New Hampshire's experience is the most important because in 1819 it led to the famous decision in Dartmouth College v. Woodward in which the U.S. Supreme Court imposed a "model of privatization on all the states" (13). By ruling that Dartmouth's charter was a contract, the Marshall court separated public and private spheres, "designating separate forums in which the two worldviews would hold sway" (3). Law succeeded where politics could not. In Dartmouth College, Americans accepted the institutional separation of religion from the state, even if they continued to battle over the nature of humanity in civil society.

To McGarvie, "the constitutional separation of church and state cannot be understood apart from the delineation of public and private institutions" and the contract clause provided the legal foundation for separation (48). Battles over religion in the early republic were, in essence, about whether Americans would accept the proliferation of private institutions with competing worldviews. In Dartmouth College, the Supreme Court said yes.

McGarvie's argument is nuanced and sophisticated in ways that no summary can capture. His writing is clear and a joy to read. However, he exaggerates the intent of the Framers. It is not clear that the Framers of the Constitution intended a complete reconstitution of American society, as McGarvie argues. Moreover, the contract clause had the narrow goal of protecting creditors from debtors and ensuring that contracts, once made, would not be revoked...

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