Law Review Articles
Law Review Articles
Carl H. Esbeck is the R.B. Price Distinguished Professor and the Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri School of Law. He joined the law faculty in 1981. He has published in the areas of church-state relations and civil rights. He has taken the lead in advancing a structural view of the establishment clause of the first amendment.
- Introduction…….. 1386
II. The Dual-Authority Pattern Characteristic of the West ……. 1395
A. The American Settlement ……….. 1395
B. Reformation on the Continent ……… 1401
C. Reformation in England…..1404
1. Catholic England …… 1404
a. Thomas à Becket …….. 1405
b. Magna Carta…… 1407
2. The English reformation ……. 1408
a. The birth of the Church of England…… 1408
b. The remaining Tudors ……. 1410
c. From the Stuarts to the Hanoverian succession…… 1412
D. Colonial America Through the First Great Awakening….. 1414
E. Pre-Revolution Forerunners of the Settlement……. 1420
1. John Locke …….1420
2. Elisha Williams…. 1421
3. James Burgh …… 1427
4. Isaac Backus….. 1432
a. Pre-Revolution dissent…….. 1433
b. New England Baptists and the Revolution …… 1437
c. The first Massachusetts constitution…….. 1439
d. Mixed signals from the courts …… 1444
III. Disestablishment: The American Settlement Unfolds ….. 1448
A. The Context for Disestablishment (1774−1833) …… 1448
B. Anglican Disestablishment: The Middle and Southern States .. 1457
1. Delaware…………… 1459
2. New Jersey……… 1468
3. New York …….. 1473
4. North Carolina …… 1481
5. Maryland …….. 1484
6. South Carolina………… 1491
7. Georgia…… 1495
C. John Leland: Evangelist of Dissent ….. 1498
1. Virginia: Leland’s crucible….. 1498
2. Connecticut: Leland as pamphleteer…1501
3. Massachusetts: taking the citadel …… 1512
D. Congregational Disestablishment: New England …….. 1524
1. Vermont ……. 1525
2. New Hampshire…….. 1530
3. Maine ……. 1536
E. Lyman Beecher: Converted Skeptic ……… 1540
F. The Settlement as Seen by Historians …….. 1547
1. Alexis de Tocqueville …… 1551
2. Robert Baird…….. 1552
3. Philip Schaff….. 1555
4. George Bancroft …… 1558
5. William Warren Sweet……. 1562
6. Jack Rakove ……1570
IV. The Modern Supreme Court: An Empty Clause and a Rich Tradition…. 1576
V. Conclusion ……. 1589
Fall 2007 When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis Carl H. Esbeck University of Missouri School of Law, firstname.lastname@example.org. Recommended Citation Carl H. Esbeck, When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis, 110 W. Va. L. Rev. 359 (2007):
“To summarize, the First Amendment is pro-religious freedom, which is quite different from being pro-religion. This predisposition includes the modem Establishment Clause, not just the Free Exercise Clause. The Religion Clauses do not conflict. Rather, both clauses work to safeguard religious freedom, albeit they operate differently to bring that about. The Free Exercise Clause is a rights-conferring clause that vests in religious individuals, including protection for any religious organizations they may form. On the other hand, the Establishment Clause is a structural clause that is about limiting in all cases the government’s net power to legislate on matters more properly within the purview of organized religion. 17 This means that the Establishment Clause, unlike the Free Exercise Clause, will afford relief in some instances where there is “no injury in fact,” a truism that the Supreme Court has adjusted to by allowing the fiction of taxpayer standing. 1″ 
Note. All books by Jerald Finney are fully supported by cited reliable authorities. All those authorities are not reproduced here, because the list would be extremely long. These resources were authorities relied upon by Jerald Finney* in his research for his writings.
Asher, Louis Franklin. John Clarke (1609-1676): Pioneer in American Medicine, Democratic Ideals, and Champion of Religious Liberty. Paris, Arkansas: The Baptist Standard Bearer, Inc. “In this book, author and historian Dr. Louis Franklin Asher has crafted the definitive biography to date on one of our country’s most overlooked colonial pioneers. In the annuals of our nation’s history lay the names of many great men who helped forge the foundation of our freedoms. But one name that is often overlooked is that of Dr. John Clarke, physician, lawyer, politician, fighter for religious freedom, and one of the original founders of the Rhode Island colony. This highly detailed and intensely readable volume is a must read for those interested in knowing more about earliest Baptists of this nation and their relationship to the separation of church and state.” – DORRANCE PUBLISHING CO., INC.
Armitage, Thomas, D.D. The History of the Baptists, Volumes 1 and 2. Springfield, Mo.: Baptist Bible College, 1977 reprint. Thomas Armitage, D.D. was born in Yorkshire, England, in 1819. Dr. Armitage was a scholarly man, full of information, with a powerful intellect; one of the greatest preachers in the United States; regarded in his time by many as the foremost man in the American pulpit. Therefore, he was frequently invited to deliver sermons at ordinations, dedications, installations, missionary anniversaries, and to college students. As a great teacher in Israel, the people loved to hear him, and their teachers were delighted with the themes and with the herald. Dr. Armitages History of the Baptists was another resource used by Jerald Finney.
Backus, Isaac. A History of New England With Particular Reference to the Denomination of Christians Called Baptists, Volumes 1 and 2 (Eugene, Oregon: Wipf & Stock, Previously Published by Backus Historical Society, 1871). Isaac Backus was born in Connecticut in 1723/24, a time when those dissenting from the views of the established church were persecuted. He withdrew from the established Congregational church, became a Separate, and later a Baptist. As a Separate and later a Baptist, he was persecuted and witnessed, researched, and wrote about the persecutions going on in New England. He was a leader in the fight for religious liberty in America. For more information on Isaac Backus see, e.g., William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967); Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1968); Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians Called Baptists, Volumes 1 and 2 (Eugene, Oregon: Wipf & Stock, Previously Published by Backus Historical Society, 1871). Isaac Backus and others such as Roger Williams, and John Clarke led the fight against the establishment of the church in the early history of America, and to their efforts we owe the First Amendment to the United States Constitution which guarantees religious liberty. The Puritans attempted to present a totally false story of what happened in New England. Backus not only chronicled that history, but also exposed many of the fallacies of the Puritan Covenant Theology, and the persecutions of those labeled to be “heretics” by the established church in New England.
“The life of Isaac Backus (1724−1806) is a story of perseverance in the face of unyielding opposition. [H]is tireless efforts in opposing the Congregational establishment in Massachusetts eroded the foundation supporting the Standing Order. The nearly imperceptible momentum gained through Backus’ lobbying, writing, and speaking ultimately cleared the way for disestablishment, which finally came in 1832 to 1833.” Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1432 (2004).
Backus, Isaac. “An Appeal to the Public for Religious Liberty,” Boston 1773, an essay found in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin. Cambridge, Massachusetts, 1968.
Beller, James R. America in Crimson Red: The Baptist History of America. Arnold, Missouri: Prairie Fire Press, 2004.
Beller, James R. The Coming Destruction of the Baptist People: The Baptist History of America. St. Louis, Missouri: Prairie Fire Press, 2005.
Benedict, David. History of the Donatists. Paris, AR: The Baptist Standard Bearer, Inc. David Benedict D.D., Baptist historian, was born in Norwalk, Conn., Oct. 10, 1779. His love for historical reading and investigation developed in itself in early life. At twenty he made a profession of his faith in Christ. Religion did for him what is has done for so many thousands of others, –quickened his intellectual nature, and made him aspire after something elevating. He entered Brown University, where he graduated in 1806. Soon after he was ordained as pastor of the Baptist church in Pawtucket, R. I., where he remained twenty-five years. During all this time he had been busy in gathering, from every part of the country, the materials out of which to form a comprehensive history of the Baptist denomination, and had sent to press several volumes relating to the subject of his investigations. After retiring from his pastorate, he gave himself with great diligence to the work of completing the task he had undertaken. He felt it to be his special vocation to do this work, and he made everything bend to its accomplishment. Among his published writing are the following: “History of the Baptist,” 1813; “Abridgment of Robinsons’ History of Baptism,” 1817; “Abridgment of History of the Baptists,” 1820; “History of all Religions,” 1824; “History of the Baptist Continued,” 1848. “Fifty Years among the Baptist,” 1860. He wrote also a history of the Donatists, which was completed just before he was ninety-five years of age, and which, since his death, has been printed. All through his life he was in the habit of writing much for the public press. He took a leading part in the founding of various religious organizations in his denominations, in promoting the cause of education, in the formation of new churches, etc. He carried the habits of hard work, which he had formed in the maturity of his years, down to the close of life. He was remarkably favored with good eyesight, and his vision was unimpaired to the last. At the time of his death he had been the senior member of the board of trustees of Brown University for sixteen years, and had been in the corporation for fifty-six years.
Callender, John. The Civil and Religious Affairs of the Colony of Rhode-Island. Providence: Knowles, Vose & Company, 1838.
Carroll, J. M. The Trail of Blood. Distributed by Ashland Avenue Baptist Church, 163 N. Ashland Avenue, Lexington KY 40502, 606-266-4341, Copyright 1931. Carroll founded and led the Education Commission of the Baptist General Convention of Texas through its first ten years. He later served as secretary and statistician for the Convention. He was also involved with the regional Southern Baptist Convention (which became a national organization). He pastored churches in Anderson, Corpus Christi, Lampasas, Taylor, Waco, and San Antonio. Active as an educator, Carroll helped found and was the first president of San Marcos Baptist Academy. He later served as the founding president of Oklahoma Baptist University in Shawnee, paying off the university’s debt with his own funds, followed by service as president of Howard Payne University in Brownwood, Texas. In addition to education, Carroll held various other positions. He was the solicitor for the Texas Baptist and Herald and served as an agent for the Southern Baptist Foreign Mission Board in Texas. Carroll worked as the financial agent for Baylor College (now the University of Mary Hardin-Baylor) and the endowment secretary for Baylor University. His lasting legacy among Baptists is his booklet entitled The Trail of Blood (1931). This collection of five lectures describes Baptist history as a direct succession from apostolic times of early Christianity. Carroll’s other publications include Texas Baptist Statistics (1895) and A History of Texas Baptists (1923). James Milton Carroll also wrote B.H. Carroll, The Colossus of Baptist History (1946), a biography of his older brother Benajah Harvey (B. H.) Carroll, a prolific Baptist preacher and Baylor educator involved with founding the Southwestern Baptist Theological Seminary. B.H. Carroll also worked with the Waco Baptist Association and facilitated the move of Baylor University to the Waco location. Jerald Finney cites Carroll in his historical writings.
Christian, John T. A History of the Baptists, Volumes 1 and 2. Bogard Press: Texarkana, 1926, Reprinted 1997. Christian earned his Bachelor’s (1876) and Master of Arts (1880) degrees at Bethel College in Russellville, Kentucky. In 1888 the college conferred on him the honorary title of Doctor of Divinity, and in 1898, Keachie College, Louisiana, honored him with the title LL.D In 1919, he became Professor of Church History at the Baptist Bible Institute, New Orleans, Louisiana (renamed the New Orleans Baptist Theological Seminary in 1946). He played a major role in the controversies surrounding the restorationist views of Baptist history taught by William Heth Whitsitt (see The Whitsitt Controversy) in the Southern Baptist Theological Seminary of Louisville, Kentucky. He wrote extensive rebuttals to Whitsitt’s works and eventually published a history of the Baptists written from a successionist’s perspective.
Clarke, John. Ill News from New-England or A Narative of New-Englands Persecution. Paris, Ark.: The Baptist Standard Bearer, Inc., Reprint: 1stprinted in 1652. John Clarke (October 1609 – 20 April 1676) was a physician, Baptist minister, co-founder of the Colony of Rhode Island and Providence Plantations, author of its influential charter, and a leading advocate of religious freedom in the Americas.
Greene, L.F. ed., The Writings of John Leland (New York, reprint 1969). “The life of John Leland (1754−1841) exemplifies the American church-state proposition in more respects than any other figure during the fifty-nine-year period of disestablishment. As a Baptist minister, Leland advanced an agenda driven by his faith and concern for individual believers and the autonomy of the church. As a citizen active in politics he evolved from a Jeffersonian Republican into a Jacksonian Democrat. Leland received his practical training during the struggle to disestablish Virginia’s Anglican church. He then put this experience to work in the second stage of the American settlement: the disestablishment of New England’s Standing Order. His efforts in Virginia, Connecticut, and Massachusetts for the cause of disestablishment and religious liberty were instrumental in finally securing the uniquely American settlement of church-state relations.” Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1498 (2004).
Hamburger, Philip. Separation of Church and State. London, England: Harvard University Press, 2002. Hamburger is the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law. He is a legal historian and a scholar of constitutional law. Hamburger is a leading scholar of the First Amendment who “made a valuable contribution to our knowledge of Jefferson’s thinking and actions with respect to matters of church and state”. He is known for arguing that “the First Amendment, originally thought to limit the government; and, unfortunately, has been increasingly interpreted by the Court to mean limiting religion and confining it to the private sphere. Justice Hugo Black, who served on the Supreme Court 1937 to 1971, came under attack from Hamburger who argues that Black’s views on the need for separation of Church and State were deeply tainted by prominent roles in the Ku Klux Klan, a vehemently anti-Catholic organization.
James, Charles F. Documentary History of the Struggle for Religious Liberty in Virginia. Harrisonburg, Virginia: Sprinkle Publications, 2007; first published in Lynchburg, Virginia: J. P. Bell Company, 1900.
Levy, Leonard W. The Establishment Clause/Religion and the First Amendment. New York: MacMillan Publishing Company, 1986. Leonard Williams Levy: (April 9, 1923 in Toronto, Ontario, Canada – August 24, 2006 in Ashland, Oregon) was an American historian, the Andrew W. Mellon All-Claremont Professor of Humanities and Chairman of the Graduate Faculty of History at Claremont Graduate School, California, who specialized in the history of basic American Constitutional freedoms. He was born in Toronto, Ontario, and educated at Columbia University, where his mentor for the Ph.D. degree was Henry Steele Commager. Levy cites a wealth of historical resources supporting the history he chronicles.
Littell, Franklin Hamlin. From State Church to Pluralism: A Protestant Interpretation of Religion in American History. Chicago: Aldine Publishing Company, 1962.
Lumpkin, William L. Baptist History in the South. Shelbyville, Tennessee: Bible and Literature Missionary Foundation.
Marnell, William H. The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy. Garden City, New York: Doubleday & Company, Inc., 1964.
McGarvie, Mark Douglas. One Nation Under Law: America’s Early National Struggles to Separate Church and State. DeKalb, Illinois: Northern Illinois University Press, 2005. Mark Douglas McGarvie, J.D., Ph.D., Assistant Professor of History and Law at the University of Richmond.
McLoughlin, William G. Editor. Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968. William Gerald McLoughlin (June 11, 1922 – December 28, 1992) was an historian and prominent member of the history department at Brown University from 1954 to 1992. His subject areas were the history of religion in the United States, revivalism, the Cherokee, missionaries to Native Americans, abolitionism, and Rhode Island. His many publications won him wide recognition, including the 1972 Frederic C. Melcher Prize for the best book on religion in America, for his New England Dissent (1971). McLoughlin was regarded as “one of the country’s most distinguished historians of American religion.”
McLoughlin,William G. Isaac Backus and the American Piestic Tradition. Boston: Little, Brown and Company, 1967.
Pfeffer, Leo. Church, State & Freedom. Boston, Massachusetts, The Beacon Press, 1953. Pfeffer’s book Church, State and Freedom, was called a “masterpiece” and the ultimate sourcebook for the history of the evolution of the all-American principle of separation of church and state. Pfeffer was an American Jewish lawyer, constitutional scholar, and humanist who was active in movement for religious freedom in the United States, and was one of leading legal proponents of the separation of church and state.
Plumer, William S. The Substance of an Argument against the Indiscriminate Incorporation of Churches. Harrisonburg, Virginia: Sprinkle Publications, 2009. Reprint of the 1847 book.
Sanford, James C. Bluerprint for Theocracy/The Christian Right’s Vision for America. Providence, R.I.: MetaComet Books, 2014. This book is full of accurate information on the goals of the Catholic/Reformed/Calvinist vision for America. Sanford’s factual assertions are easily verifiable, and generally speaking, very accurate. Secularists read this type of work, attribute the goals and lies of the Christian Right, and attribute them to all “Christians.” People are not led to Christ by Christian lies; rather Christian lies cause people to blaspheme the name of God. Of course, Sanford, a secular revisionist, has a secular vision, propped up by his own lies and concoctions which will lead to destruction. Trained as a historian, James Sanford has had an active career as college professor, rare book dealer, and most recently, writer and editor. His field of interest is politics and religion in contemporary America, although he strays into other areas as well. Of special concern to him is the country’s ideological dysfunction and what lies behind it. Currently, he writes articles in the electronic media, contributes a blog at PoliticalOptic.com, and is the author of two books. See his website: https://politicaloptic.com/.
Verduin, Leonard. The Anatomy of a Hybrid: A Study in Church-State Relationships. Grand Rapids, Michigan: William B. Eerdmands Publishing Company 1985. Leonard Verduin was well known among Mennonites and other Anabaptists as the translator of The Complete Writings of Menno Simons and for his scholarly contributions to and interest in Anabaptist history and theology. Far less is known about his other Mennonite “connections,” particularly his efforts to change Article 36 of the Christian Reformed Church’s Confession of Faith, which condemned the Anabaptists.
Williams, Roger and Underhill, Edward Bean. The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered. London: Printed for the Society, by J. Haddon, Castle Street, Finsbury, 1848 (Reprint). Roger Williams (c. 21 December 1603 – between 27 January and 15 March 1683) was a Puritan, an English Reformed theologian, and later a Reformed Baptist who was expelled by the Puritan leaders from the Massachusetts Bay Colony because local officials thought that he was spreading “new and dangerous ideas” to his congregants. He fled the Massachusetts colony under the threat of impending arrest and shipment to an English prison; he began the settlement of Providence Plantations in 1636 as a refuge offering freedom of conscience. He was the founder of Rhode Island, the first government in history with complete freedom of conscience. Due to the efforts of Mr. Williams, Dr. John Clarke, and others who followed, America has the First Amendment to the United States Constitution which gives freedom of conscience. The Bloudy Tenant… and subsequent writings exposed the fallacies of the Puritan Covenant Theology, and the persecutions of those labeled to be “heretics” by the established church in New England.
*Finney, Jerald, BBA, JD, BAB (Born-again believer), is a lawyer who has studied American colonial history for 12 years. He thoroughly documents his factual assertions so that the reader can check out what he is saying. Needless to say, mainstream “Christian” revisionists try to hide and ignore the truths he presents. See, The Trail of Blood of the Martyrs of Jesus/A Case of Premeditated Murder/Christian Revisionists on Trial/The History of the First Amendment, which covers not only the truth about colonial religious history but also the truth about “Christian” historical revisionism in America.