Academic journal article The Catholic Historical Review

The Spirit of the Law: Religious Voices and the Constitution in Modern America

Academic journal article The Catholic Historical Review

The Spirit of the Law: Religious Voices and the Constitution in Modern America

Article excerpt

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 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. …

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