(R.K. Ramazani, Robert Fatton) Religion, State, An

Reli gi on, State, and Society
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Reli gi on, State, and Societ y
Jefferso n’s Wa l l o f S eparat i on
in Comparative Perspective
Edited by Robert Fatton, Jr. and R. K. Ramazani

religion, state, and society
Copyright © Robert Fatton, Jr. and R. K. Ramazani, 2009.
All rights reserved.
First published in 2009 by PALGRAVE MACMILLAN® in the

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Library of Congress Cataloging-in-Publication Data
Religion, state, and society : Jefferson’s wall of separation in

comparative perspective / edited by Robert Fatton, Jr. and R.K.
Ramazani.
p. cm.
Includes bibliographical references and index.
ISBN 0-230-61230-X
1. Church and state—United States. 2. Jefferson, Thomas,
1743–1826 3. Religion and politics. 4. Freedom of religion. 5. United
States—Church history. I. Fatton, Robert. II. Ramazani, Rouhollah
K., 1928–
BR516.R45 2008
322'.109—dc22 2008021603
A catalogue record of the book is available from the British Library.
Design by Scribe Inc.
First edition: January 2009
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Printed in the United States of America.

Contents
Preface vii
Andrew Jackson O’Shaughnessy
Introduction 1
Robert Fatton, Jr. and R. K. Ramazani
I The American Experience: The Jeffersonian Wall of

Separation between Church and State
1 Thomas Jefferson’s Christian Nation 17

Peter Onuf
2 Beyond Locke, beyond Belief: The Nexus of Free 37

Exercise and Separation of Church and State
Jack N. Rakove
3 “Separation” Abroad: How Long the 53

Jeffersonian Shadow?
Robert M. O’Neil
4 The Road from Monticello: The Influence of the 73

American Constitutional Experience in Other Lands
A. E. Dick Howard
II The Wall of Separation and Western Perspectives
5 Secularism, Liberalism, and the Problem of Tolerance 93

Adam B. Seligman
6 America’s Secular State and the Unsecular State 109

of Europe
John T. S. Madeley
vi Contents
7 Christianity, Violence, and Democracy: Sociohistorical 137

Selection from a Basic Religious Repertoire
David Martin
III Middle-Eastern Perspectives
8 Religion and Politics in the Middle East and 155

North Africa
William B. Quandt
9 Revisiting Jefferson’s Wall from a Contemporary 171

Middle-Eastern Perspective
Ann Elizabeth Mayer
10 Constitutionalizing Islam in the Arab World 195

Nathan J. Brown
11 Religion and State in the State of Israel 215

David H. Goldberg and Bernard Reich
Index 233
Preface
Unlike the French and Russian Revolutions, the American Revolution

was not antireligious. It did not result in the destruction of church
property or the persecution of religious sects. The popularity of reli-
gion grew in its aftermath to the extent that Tom Paine was ostracized
in the United States on his return from France following the publica-
tion of what many regarded as an atheistic tract, The Age of Reason.
The American Revolution nevertheless did transform the relation-
ship between church and state in a constitutional arrangement that
remains unique to the United States. Even before 1776, four of the
thirteen colonies did not have a church establishment in which the
government granted taxes and privileges to a particular denomina-
tion. The process of disestablishment was accelerated by the American
Revolution but was not fully complete in the northern states, which
were originally settled for religious motives by the Puritans, until pub-
lic support for the congregational church was finally abolished in Mas-
sachusetts in 1833.
A pivotal event in the process of redefining the relationship
between church and state in America was Thomas Jefferson’s Statute
for Religious Liberty in Virginia in 1786. Jefferson later regarded the
statute as one of his three greatest achievements together with the
Declaration of Independence and the founding of the University of
Virginia. It may seem curious in retrospect that he should give such
prominence to the passage of a law that applied to just one state and
not to the nation in general. This was because Virginia was the most
populous state in America. The act was far more comprehensive in
prohibiting religious discrimination than any other law in any other
state. Furthermore, the disestablishment of the Anglican Church was
more vigorously contested in Virginia than in other southern states
like North and South Carolina. Although later characterized as an
atheist by his Federalist opponents, Jefferson partially owed his success
to the support of Methodists and Baptists, together with Shenandoah
Valley Presbyterians, who opposed the establishment of the Anglican
viii Preface
Church. Jefferson’s later definition of the relationship of church and

state, most notably in his letter to the Danbury Baptists in 1802, in
which he spoke of a wall of separation, has been highly influential in
the decisions of the Supreme Court on questions of church and state
since the 1940s.
This volume arose from a conference held at the Archbishop’s Pal-
ace in Prague, sponsored by the Robert H. Smith International Cen-
ter for Jefferson Studies, in association with Colonial Williamsburg
Foundation and the Jefferson Institute, on the subject of “The Call
for a New World Order: Thomas Jefferson’s Separation of Religion
and State,” in March 2007. Since it was established in 1994, the Rob-
ert H. Smith International Center has been committed to fostering
Jefferson scholarship, disseminating information about Jefferson to
diverse audiences, and highlighting the currency of Jeffersonian prin-
ciples in today’s world. It has conducted more than twenty schol-
arly conferences held variously in Bellagio, Berlin, Glasgow, London,
Paris, Prague, Salzburg, and Warsaw. Although most of the confer-
ences focus on the historical Jefferson, the Smith International Cen-
ter has also initiated conferences on the modern legacy of Jefferson,
including one on “Thomas Jefferson, Rights, and the Contemporary
World,” held at the Bellagio Conference and Study Center in June
2003, whose proceedings were published by Palgrave Press in 2004
in The Future of Liberal Democracy: Thomas Jefferson and the Contem-
porary World.
The Prague conference explored Jefferson’s wall of separation
in relation to the modern Middle East and Europe. The issue has
returned to the forefront with the revival of religious fundamental-
ism in both the East and the West, posing what some have called
a clash of civilizations. The decision of the Bush administration to
impose a clause of separation between church and state in the interim
constitution of Iraq raised questions regarding the applicability of the
Jefferson model for the Middle East and Europe. A panel of histori-
ans introduced Jefferson’s ideas while political scientists and philoso-
phers discussed their current implications. The conference concluded
that the Jeffersonian separation between church and state was unique
to the United States and too radical for the Middle East and much
of Europe. Jefferson’s views on individual rights are more relevant
than his views of religion to the present needs of the Middle East
and Europe. The relationship of church and state remains fluid even
to some extent in America, where the interpretation of the Supreme
Court since the 1940s has been more rigid than during the period of
Jefferson’s presidency. The separation between church and state was
Preface ix
not particularly contentious in the nineteenth century when the rela-

tionship was more porous than now. At the same time, the situation
in the Middle East was represented to be much less monolithic and
theocratic than it is popularly represented in the United States and
Europe. The issue promises to remain topical owing to the increas-
ingly diverse ethnic character of nation-states.
It is a pleasure to acknowledge those colleagues and institutions who
assisted with the conference and with this volume of the proceedings.
R. K. Ramazani, the Edward Stettinus Emeritus Professor of Gov-
ernment and Foreign Affairs at the University of Virginia, suggested
the topic and has played a guiding role throughout. The planning
of the conference was also made in consultation with Robert Fat-
ton, the Julia Allen Cooper Professor of Politics; Merrill Peterson, the
Thomas Jefferson Foundation Professor Emeritus in History; William
Quandt, the Edward Stettinus Professor of Government and Foreign
Affairs; Robert O’Neil, Professor of Law and Founding Director of
the Thomas Jefferson Foundation for the Protection of Free Expres-
sion; James Horn, the Vice President of Research and the Abby and
George O’Neill Director of the John D. Rockefeller Jr. Library at The
Colonial Williamsburg Foundation; Aaron Presnall, the President of
the Jefferson Institute; David Martin, Professor Emeritus of the Lon-
don School of Economics; and Bernice Martin, Emeritus Reader in
Sociology at Royal Holloway College at London University.
It is also a pleasure to acknowledge the additional funding support
from The Colonial Williamsburg Foundation and the John Temple-
ton Foundation. The outstanding local arrangements for the confer-
ence were made by the Jefferson Institute in Belgrade, where Aaron
Presnall and Biljana Presnall, together with Scott Walker, gave unstint-
ingly of their time whether arranging for special visas from Iran or for
the use of the Archbishop’s Palace. It was also thanks to them that the
conference was so fortunate as to have a video keynote address that
was graciously given by His Royal Highness Prince Hassan of Jordan.
Katherine Neville and Dr. Karl Pribram, friends of both the Thomas
Jefferson Foundation and President Václav Havel, helped arrange the
presence and active participation of President Havel’s senior adviser,
Professor Tomá? Halík. There was a reception for the conference par-
ticipants at the residence of the American ambassador to the Czech
Republic for which we are very grateful to our hosts, Mrs. Alexan-
dria Graber, the wife of Ambassador Graber, and Michael Hahn, the
U.S. Counselor for the Press and Cultural Affairs. I am indebted to
R. K. Ramazani and Robert Fatton for undertaking the editing of
this volume and completing it with such efficiency. Joan Hairfield,
x Preface
my assistant at the Smith International Center, helped in numerous

ways in both the conference arrangements and in the preparation of
the manuscript proceedings. Finally, Dan Jordan, the President of the
Thomas Jefferson Foundation, had the vision of making Monticello
unique among historic houses in giving such emphasis and resources
to education and research through the creation of the Robert H.
Smith International Center for Jefferson Studies. It is a particularly
appropriate memorial to one who believed so fervently in the life of
the mind and the pursuit of knowledge as Thomas Jefferson.
Andrew Jackson O’Shaughnessy

Monticello
March 2008
I ntrodu ction
Robert Fatton, Jr. and R. K. Ramazani
T he chapters in this book are the product of a conference entitled

“The Call for a New World Order: Thomas Jefferson’s Separation
of Religion and State,” held at the Archbishop’s Palace in Prague,
Czech Republic, in March 2007. The conference was organized
by the Robert H. Smith International Center for Jefferson Studies
with the support of the Colonial Williamsburg Foundation, the Jef-
ferson Institute, and the John Templeton Foundation. The issue of
the relationship between religion and state, which was for the most
part benignly neglected by social scientists for a long period dur-
ing the Cold War, has resurfaced with intensity in the past decade.
The resurgence of “fundamentalism” not only in developing nations
but also in economically affluent “postmodern” societies has revived
the old debate about the interaction between religion and politics; is
the fusion—or relative embrace—of the two compatible with toler-
ance and individual freedom? In short, can a state sanctioned and
governed by divinely ordered norms and laws be at all democratic?
Clearly the Founding Fathers of the United States—and above all
Thomas Jefferson—believed that liberal democracy could flourish
only if a clear separation existed between state and religion. Religious
beliefs and practices had to be protected and were at the root of civic
morality; the government, however, could neither espouse a religion
2 Robert Fatton, Jr. and R. K. Ramazani
nor govern in the name of a religion lest society fall into intolerance
and despotism.
The American Founding Fathers sought to resolve the dilemma of
how to safeguard the religious beliefs and practices of the citizenry
without establishing a theocratic state. This became a fundamental
object of their constitutional crafting because they assumed that reli-
gion would be a permanent element in human affairs. As Robert O’Neil
points out in this book, Thomas Jefferson and his “fellow Framers
crafted a document not only for a uniquely complex and disparate
nation, but also for all time and human experience.” The conviction
that religion would always play a critical role in the life of the indi-
vidual as well as society in general was not shared by all. Indeed, some
of the major figures of the Western social sciences, ranging from Karl
Marx to Max Weber, believed that industrial modernity, and the con-
tinuous advance of scientific rationality and technology, would gener-
ate the inevitable secularization of society. Religion would simply fade
away; it would become a historical memory and cease to be a living
reality. It would no longer intrude into the workings of the political
order or fuel backward attitudes. Human beings would be freed from
the suffocating weight of tradition and alienation even if they would
have to face a “disenchanted” world. To that extent, according to
classical social science, modernity would make obsolete the old prob-
lem posed by the relationship between religion, society, and politics;
it would kill God. Moreover, it was thought that secularization would
deepen individualism, tolerance, and diversity and enhance the further
development of democracy. In that perspective, there was a linear and
causal chain linking backward economies to traditional, religious, and
authoritarian polities, on the one hand, and industrial affluence to
enlightened, worldly, and democratic social orders, on the other.
In reality, however, the American Framers seem to have been
right. Modernity has proved quite compatible with the persistence
and even intensification of religious beliefs and traditions. The ques-
tion remains, however, whether democracy can coexist without secu-
lar popular attitudes and institutions. While religion as a living social
phenomenon does not seem to be necessarily antagonistic to democ-
racy, it tends to become so when it guides the authority of the state.
The founding fathers of the United States embraced this assumption
and established a doctrine of separation between church and govern-
ment while espousing the individual’s freedom to practice his chosen
religion. Among them, Thomas Jefferson played the foremost role in
elaborating this doctrine. He articulated his forceful advocacy of what
he called a “wall of separation between church and state” in his letter
Introduction 3
of 1802 to the Danbury Baptist Association. This was not just a mat-
ter of promoting civic morality and virtue; it was also a fundamental
defense of freedom of conscience and religion.
The Jeffersonian perspective that democracy requires this “wall of
separation” has had a profound influence on both the domestic and
foreign policy of America. While it has established obdurate limits to
the long penetrating reach of the state into spheres deemed private,
it has not prevented religion from permeating politics in the United
States. In fact, as Ronald Inglehart and Christian Welzel have recently
pointed out, “the United States is a deviant case, having a much
more traditional value system than any other postindustrial society
except Ireland. On the traditional/secular dimension, the United
States ranks far below other rich societies, with levels of religiosity
and national pride comparable with those found in some develop-
ing societies.”1 According to polling data conducted over the past
ten years, 55 percent of Americans thought that the Bible “was liter-
ally accurate,” more than 90 percent and 80 percent believed in God
and miracles, respectively, and more than 60 percent held as “literally
true” that “God created earth in six days.”2
Not surprisingly, Americans are far from being unanimous on how
solid and thick the “wall of separation” ought to be; on repeated
occasions since 1947, the Supreme Court has had to rule on diverse
contested aspects of the “doctrine of separation.” It is true that sepa-
ration remains, however, a fundamental constitutional principle in the
United States, even if increasingly, Americans expect their politicians
to disclose their religious beliefs. The growing religiosity of the United
States is apparent to the extent that presidents and presidential can-
didates proclaim their faith and have no reluctance in declaring that
their decision-making process is informed by God. While five decades
ago John F. Kennedy believed “in an America where the separation of
church and state [was] absolute,” in the seventies Jimmy Carter iden-
tified himself as a “born again” Christian, and more recently, George
W. Bush not only claimed Jesus as his favorite philosopher but also
believed that “God [wanted him] to be president.” In fact, he was
reported to have told a group of Amish: “I trust God speaks through
me. Without that, I couldn’t do my job.”3
In spite of the growing significance of religion in American life, the
country has not fallen into the tyrannical rule of what Jefferson called
the “priestcraft.” Elsewhere in the world, however, the resurgence of
religion has nurtured intense fears about the prospects of a descent
into theocratic despotism. In fact, most societies are now wrestling
in one way or another with the crucial question of establishing the
proper balance between religion and state. Even communist China

is confronting the reality that imposing atheism is not a simple mat-
ter and that sacred traditions and rituals continue to mold people’s
practices and beliefs. In fact, communist authorities have had to toler-
ate and ultimately support Buddhism and Confucianism because they
have come to perceive these faiths as contributing to social harmony
and political stability.
This book, however, focuses on societies where the Christian,
Islamic, and Jewish traditions predominate. Also, it explores rela-
tions between religion and state that are so problematic that they may
portend serious conflicts and violence. Moreover, the book seeks to
delineate the extent of the demarcation between religion and state
in America, Europe, and the Middle East. It reveals the enormous
complexity and diversity of governmental policies and constitutional
principles on this matter. As we remarked above, in America itself, the
doctrine of separation is by no means interpreted uniformly, even if
it is regarded as inextricably intertwined legally and politically with
the principles of democracy and religious freedom. Unlike America,
other Western democracies such as England do not view established
Christian religion as inimical to the values of liberty, tolerance, and
individual rights. While tensions exist between the two, they are per-
ceived as neither incompatible with, nor necessarily antagonistic to,
liberal politics. For most Western observers, however, the relationship
between Islam and state is more complex; in their eyes the absence of a
wall of separation between the two is conducive to different degrees of
theocratic authoritarianism. Thus, when these observers study Middle
Eastern societies they tend to depict the relation between religion,
state, and freedom as conflictive and even inimical.
Ultimately, the compatibility between established state religion and
democracy rests on whether citizens have the constitutional capac-
ity to contest the authority and legitimacy of a government ruling
in the name of God and based on divinely inspired law. In short, can
human beings challenge God and God’s alleged political representa-
tives? The question clearly goes beyond the geographical regions and
the three Abrahamic religious traditions that this book studies; we
hope therefore that the chapters in this book will stimulate intellec-
tual debate and broaden the discussion in a truly global comparative
perspective. For instance, how are societies in Africa, Latin America,
and Asia arranging the relationship between religion and state? Is the
so-called third wave of democratization in these areas undermined by
the resurgence of the sacred? And are these societies concerned at all
about erecting their own wall of separation?
Introduction 5
This last question raises another critical matter: can American con-
stitutional democracy be exported abroad? While the assumption that
democracy is incompatible with backward economies and particular
cultures and religious faiths has to be resisted, there is little doubt
that the goal of imposing democracy with guns, missiles, and bombs
is at best unrealistic and at worst cynical. The George W. Bush admin-
istration’s experience in Afghanistan and Iraq demonstrates that the
facile and dreamy goal of forcefully exporting American democracy
throughout the world can end in disaster.
In part I of this book, Peter Onuf describes Thomas Jefferson’s wall
of separation not as a symbol of antireligious principles, but rather as
an embrace of “a more enlightened purified Christianity” that would
emerge from the free operation of the religious marketplace. In this
perspective, Jefferson was an “idiosyncratic” Christian who sought to
end the pernicious rule of “priestcraft.” Ultimately, his commitment
to “disestablishment” was a means to contribute to a “post-theologi-
cal and sectarian future in which science, religion, and republicanism
converged.” To that extent, Jefferson was a firm believer in the com-
patibility between democracy and freedom of religion. In fact, the
flowering of multiple religious faiths unencumbered by state control
ensured both liberty and political order. As Onuf puts it, “Competi-
tion among proliferating sects gave rise to more democratic forms of
church organization, to simpler, more direct theological appeals, and
to less and less emphasis on the doctrinal differences that had justified
religious wars and the spilling of ‘oceans of human blood’ throughout
human history.” Far from summoning a struggle against the sacred,
Jefferson’s doctrine of separation was a call for religious and indi-
vidual freedom, which, he believed, would promote the discovery of
the “genuine doctrines of Jesus.”
While this discovery was in Jefferson’s perspective critical to the
development of the United States as a “moral community” playing
a “providential role in world history,” Jack Rakove reminds us that
the wall of separation was above all a way to “fence off . . . one vital
area of the human personality from public intrusion, supervision,
and punishment.” The separation between church and government
is therefore one fundamental means of protecting citizens from the
potential predatory reach of the state. By providing individuals the
right to freely choose their religion unencumbered by the imposing
power of political authorities, “disestablishment” was both cause and
effect of the call for freedom of conscience and limited government.
As Rakove argues, “freedom of conscience is better understood as
both a necessary condition and even a compelling argument in itself
for the separation of church and state.” This in turn was a clear sign
that for Jefferson and his fellow Framers, constitutional democracy
was primarily a form of limited government that could not infringe
on individual rights. Writes Rakove, “The idea that government can
entirely abjure its authority to regulate religion, as such, marks the
point where the general concept that all the powers of government
ultimately derive from a sovereign people was converted into the rec-
ognition that there were entire realms of human activity that govern-
ment could no longer be allowed to regulate.”
Not surprisingly, the influence of the American constitutional
experience on other lands has primarily inspired the crafting of lim-
ited forms of governments rather than effecting the erection of the
wall of separation. While Robert O’Neil points out that this wall has
precluded the creation of a “formally established and publicly sup-
ported church,” he stresses that it has not prevented the development
in America itself of “complex and beneficial relationships between
government and religion.” These relationships are certainly more
fluid and symbiotic in other parts of the world where either “a surviv-
ing establishment coexists with substantial religious freedom . . . (as
in the United Kingdom) because of strong safeguards in the courts
and surely not because of any mandated separation of church and
state,” or “where secular principles dominate, as in Turkey, though
without a consistently secure and pervasive condition of religious lib-
erty.” Clearly, then, few countries have erected the Jeffersonian wall
of separation. In fact, as O’Neil remarks, “there appear to be only two
foreign nations [France and Australia] in which both free exercise and
nonestablishment both receive explicit constitutional commitment.”
Even in these two cases, however, striking differences between these
countries are apparent.
The exportability of the American constitutional model is thus lim-
ited by the cumulative weight of distinct historical trajectories, cultural
norms, and political traditions, as well as by varying levels of economic
development. In fact, according to A. E. Dick Howard, Americans
“must beware the temptation to hold out their own country’s experi-
ence as surely right for another people.” This is not to say that the
American experience has nothing to offer to the rest of the world,
but rather that borrowing from it can be successful only for those
societies “aspiring to liberal constitutional democracy.” There are also
exceptions, as the case of Japan illustrates, where the American mili-
tary occupiers imposed a constitution that has survived their depar-
ture. American constitutionalism can thus impress on foreign lands
its fundamental principles of “limited government, separation of powers,
Introduction 7
checks and balances, a recognition of national and local interests, con-

stitutional supremacy over ordinary laws, and protection of individ-
ual rights.” Exporting the wall of separation, however, seems to be a
more complicated affair; especially in cultures where people perceive
religion, politics, and private life as one integrated sphere rather than
as demarcated domains operating independently from each other.
Despite the pretensions of many U.S. leaders, American constitu-
tionalism, let alone the separation between church and state, does
not seem to be universal. Indeed, as Adam Seligman argues in part
II of this book, the idea that concepts such as religion and secularity
are “objective, universal and value-free” is “fundamentally flawed.” In
spite of its popularity, this idea serves us poorly in analyzing societ-
ies that are not rooted in Western Christian civilization. For what is
meant by the term secular or secularization? For instance, can we truly
accept Ronald Inglehart’s contention that China is the most secular
society in the world when in reality it is riddled with a “proliferation
of spirit cults and other forms of worship”? Or, to paraphrase Selig-
man, are the Muslims who eat during Ramadan—but only in private,
in hiding, away from communal eyes—secularists, sinners, or igno-
rant? In Seligman’s view, such behavior reflects people’s never-ending
interpretation and reinterpretation of their traditions. This process is
in turn “continually being negotiated and negotiated anew by com-
munities and individuals over the course of time.”
For Seligman, secularism is nothing but “a very particular moment
in the Christian process of negotiation of its own tradition,” a moment
that crystallized the privatization of religion and of conscience. In
turn, such privatization was “part of a larger politics, perhaps even
a political theology that has become the hallmark of a liberal Ameri-
can vision of modernity. And of course here precisely is the rub. For
accepting these principles essentially means accepting either a liberal/
secular version of selfhood and society that is not shared across the
globe and across human civilizations, or an explicitly Protestant vision
of human existence in the world—which is certainly not shared.”
Secular liberalism, however, is not the “terminus ad quem” of
Christian civilization. In fact, it deprives individuals of recognition
and of their “separate and unique existence and identity” because it
emphasizes their sameness and their equal rights.
The lack of recognition has paradoxically reinvigorated a search
for alternative identities “predicated on religion, ethnicity, and
nationhood.” Not surprisingly, this has meant the exaltation of dif-
ference and local particularisms and a withdrawal of communities
unto themselves. Instead of a tolerant cosmopolitanism, there is in

Christian and non-Christian areas alike a “closing of ranks against
the outside world and a reticence to interact with those who are
truly different.” In fact, the United States and Western Europe are
witnessing, especially after the tragic events of September 11, a grow-
ing wave of anti-immigrant feelings often clothed in loud and ugly
anti-Islamic pronouncements. According to Seligman, we can escape
from this predicament and revitalize pluralistic and tolerant patterns
of behavior only if we reengage vigorously with traditions that are
not “predicated on liberal and modernist ideas of self and of interac-
tion between selves.”
But have the instrumentalities of state power been at the service
of modernist, liberal, and secular forces? John Madeley’s survey of
Europe suggests, perhaps surprisingly, that they have tended to boost
religious objectives and institutions. The secular state, as it were, is
more an invention of the United States than a universal phenomenon.
In Europe, the evidence indicates not only “the survival of many of
the marks of the early-modern confessional state,” but also “a reverse
trend toward a reengagement of state authorities with the religious
sphere on a range of fronts.” The collapse of the atheistic commu-
nist regimes has accelerated the trend. But even before this collapse,
European states were predominantly “religious”—that is, supportive
of religion and church institutions. Indeed, following this definition,
twenty-one out of thirty-five European countries could be consid-
ered religious in 1980, and only five were “secular” in the sense that
they promoted “neither religion nor irreligion.” The remaining nine
were atheistic insofar as they were all communist states committed
to an official antireligion ideology. Thus, Madeley offers significant
data to prove that the “instrumentalities of state power and authority
. . . often have been utilized for religious ends in Christian Europe as
much as in other parts of the world.”
Utilization, however, does not mean fusion; according to David
Martin, democracy unfolds when the “religious sacred centered on
the unity of the faithful” separates from the “social sacred centered on
the unity of the nation.” The development of democracy has hinged
upon both the establishment of a distance between the sacred and
the profane, and the survival of the sense of solidarity that religion
had hitherto provided to the community. The problem, however, is
that once the consensus fidelium has been “undermined by an appeal
to the individual conscience in the interpretation of scripture, and its
eventual secular translation in terms of individual judgment as such,
Introduction 9
unity is in principle beyond recovery.” The vacuum left by the shatter-

ing of the consensus fidelium has to be filled by an alternative form of
solidarity, lest violence subverts the possibility of democracy. Martin,
however, warns of the danger of a rising nationalism becoming the
new consensual principle and unleashing a politics of exclusion based
on ethnic or ethnoreligious cleansing.
This trajectory is not inevitable, and Martin suggests that certain
religions seem to facilitate both the erection of the Jeffersonian wall of
separation and a smoother transition to democracy. He writes, “Prot-
estantism has provided uniquely easy passage for democracy, in spite
of a partial association of state churches with elite strata and a conser-
vatism of throne and altar.” In contrast, Catholicism stopped being an
obstacle to democratic tolerance only with Vatican II, when it aban-
doned its “fortress mentality . . . with its authoritarian, intégriste, and
antiliberal stances.” Catholicism has remained, however, intolerant of
what it considers the permissive behavior of an increasingly narcissistic
consumer society. It continues to be concerned about what it alleges
to be the moral laxity of liberal Western democracies, the decadence
of sexual norms, and the blasphemous character of modern popular
culture. To that extent, Catholicism shares with Islam a generalized
anxiety about modernity as portent of moral and spiritual decay; but
unlike some popular versions of Islam, Catholicism has largely for-
saken an integral vision of state and religion rooted in the “the unity
of religious and national identity and the close alliance of religious
and secular law.” According to Martin, such versions of Islam face
the dilemma of how far they can extend “liberal tolerance . . . to
minorities, increasingly segregated in cultural ghettos at a consider-
able distance from the values of civil society.” On the other hand,
he suggests that Islam’s tolerance is ultimately contextual; it varies
depending on the location in which Muslims find themselves. So, for
instance, “in the United States they mostly assimilate to the pluralistic
ideal, whereas in Europe they are divided, and in Pakistan . . . they are
menacingly hostile to minorities.”
In part III of this book, William Quandt goes beyond the idea of
Islam’s contextuality. In fact, he argues forcefully that in most coun-
tries of the Middle East and North Africa, it is the logic of the state
and politics that imposes its hegemony over religion. In that sense,
the proximity of the sacred and the profane is neither the cause of the
mostly authoritarian character of the region, nor the source of the
growing popularity of religion. The absence of the wall of separation
is simply not responsible for the area’s predicament. Quandt writes,
The idea that religion trumps politics in the Middle East is, in fact,
almost the opposite of the historical record, where states have generally
dominated and determined how religion should be observed. With the
weakening of states, opposition movements have arisen in recent years
that draw heavily on religious symbols, but it would be a mistake to
see these as primarily or solely religious expressions. They are largely
about politics and power, and if they succeed in coming to power they
will almost certainly behave as other states have in the past—they will
view it as the prerogative of the state to decide how religion should
be taught and practiced. . . . [Political] power is almost always in the
hands of individuals who are primarily political, not religious, in their
orientation. Religion thus becomes the handmaiden of politics, not the
other way around.
Iran, however, seems to be the exception to the primacy of politics

over religion. There the clergy has seized state power and the supreme
leader is a senior Ayatollah chosen by the predominantly clerical
Assembly of Experts. Moreover, the Council of Guardians controlled
by religious figures is empowered to guarantee that candidates for
election are devout Muslims and that legislation is consistent with
Islamic law. Quandt rejects, however, the conventional labeling of
Iran as a theocracy, because the religious regime functions alongside
representative institutions that are accountable to the population.
Iranians enjoy the benefits of the universal franchise and elect their
president and parliament. The fact remains, though, that Islam plays
a pervasive and guiding role in Iranian politics and society. This may
have to do with the dominance of Shi‘a Islam, which has historically
displayed greater autonomy from the state than its Sunni counterpart.
This autonomy has given Shi‘ite religious figures the legitimacy to
claim that unlike Sunni clerics, who are often described as “hand-
maidens of state power,” they are the only alternative to the rule of
corrupt leaders. Variances in Islam are thus critical in understanding
the differences in forms of governance and the relationship between
the sacred and the profane.
But as Quandt remarks, even if Iran represents “the high-water
mark of religion in politics . . . it is not at all certain that the clergy will
always maintain the tight grip that it seems to have today.” In other
words, the vicissitudes of three decades of clerical rule have begun to
sap the moral authority of Islam itself; Islam in power has paradoxi-
cally been undermining the power of Islam since it has been incapable
of resisting authoritarian temptations and the fraudulent gains of gov-
ernmental corruption.
Introduction 11
Ann Elizabeth Mayer reminds us that “patterns of repression” are

not necessarily linked to the absence of a wall of separation. In fact,
she argues that Turkey’s secular state is “proof that disestablishing
religion does not necessarily mean ending state-imposed orthodoxy
or relaxing onerous restrictions on freedom of thought and expres-
sion.” Authoritarianism is thus not an inevitable by-product of an
Islamic seizure of power. Indeed, Mayer contends that “in certain cir-
cumstances, upholding Islam as the state religion under a traditional
Islamic monarchy could actually help to secure space for democ-
racy and religious freedom. . . . [In] the contemporary Middle East,
clinging to an absolutist policy of separating religion and state could
be unwise and even counterproductive.” This is not to imply that
Islamism’s insistence on the necessity of fusing state and religion has
no authoritarian implications. Far from it. As the Iranian case demon-
strates, the Islamist claim that it is un-Islamic to challenge the unity of
religion and government can easily provoke a descent into despotism
and terror.
Mayer contends that Islamists are invoking the Prophet Muham-
mad’s infallible leadership of the unified Muslim community, umma,
not only to restore this unity, but also to gain the political support
of a disaffected population in order to seize power. Given the con-
ditions of economic backwardness, social inequalities, and corrupt
patterns of governance prevailing throughout the Middle East, it is
easy to understand the Islamist’s popular appeal. As Mayer explains,
“Islamism promises the disaffected that a utopian system lies at hand
that can easily cure all these ills. According to Islamist theory, all
that is required is rule by pious leaders committed to the faithful
implementation of Islamic law, which constitutes the blueprint for
perfect societies.”
In that perspective, clerics use Islamism to manipulate the religious
feelings of the population and ultimately to take political power. Once
their rule is secure, they establish Islamism as an infallible system of
belief and governance to liquidate opponents, suppress dissent, and
impose their theocracy. This, according to Mayer, is the unfortunate
trajectory of Iran’s Islamic revolution. But this is only part of the
story, for the very excesses of Islamism have provoked among impor-
tant clerics a questioning of the unity of state and religion and an
increasing uneasiness with Islamism itself. To that extent, the issue
of the Jeffersonian wall of separation is alive in Iran. As Mayer puts
it, “Islam itself has been no barrier to an enhanced awareness of the
benefits of separating religion and state.”
Nathan Brown, on the other hand, suggests that this awareness

may well be thwarted by the traditional Islamic belief that “corrup-
tion comes from eliminating the connection between eternal truths
and public affairs.” This belief is supplemented by a common convic-
tion that such timeless truths emanate from God and can be imposed
on society through the sharia—the Islamic way. By embodying a
divine legal framework, the sharia can become the sole code of human
conduct, thus nullifying any meaningful process of constitutional
framing. In fact, in many Arab countries, constitutional provisions
empower the sharia to become the basis for all “legal enactments.”
To that extent, as Brown points out, “the sharia itself stands prior to
the positive legal order—including, potentially and by implication, the
constitution itself. If the sharia is a primary source . . . of legislation,
then it becomes possible to argue that it forms the fundamental legal
framework. . . . [This] makes it possible to challenge legislation that
does not seem to be in conformity with Islamic sharia principles on
constitutional grounds. In short, it makes it possible—through con-
stitutional jurisprudence—to turn the principles of the Islamic sharia
into a supraconstitutional order.”
This is not to say that constitution making in the Arab world is
bound to submit to the divine dictate of the sharia. According to
Brown, countries like Morocco, Algeria, Egypt, and Yemen have man-
aged to integrate aspects of Islam into their constitutional frameworks
without challenging the ultimate supremacy of their constitutions.
They have been able to include legal provisions that have maintained
the symbolic power of Islam without diluting the sovereign author-
ity of political rulers. Still, the tension between religion and state has
not abated; on the contrary, it is likely to intensify and reinvigorate
constitutional debates. As Brown argues, the “Arab experience does
not show that Islamic constitutionalism must fail. But it does raise the
importance of the skeptical questions suggested by Western consti-
tutionalist practice: How can one apply divinely inspired law without
giving authority to human beings? And how can human beings be
held accountable to divine standards?”
As David Goldberg and Bernard Reich demonstrate, the relation-
ship between synagogue and state in Israel raises similar questions.
While the self-designed Jewish nation has no official religion and
protects the freedom of religion for all citizens, and was founded by
“essentially secular, socialist . . . Zionists,” it is permeated by religious
practices and norms. For instance, the state has always played a signifi-
cant role in interpreting Jewish law, halacha, and has left in the hands
of Orthodox religious parties the thorny problem of defining who is
Introduction 13
a Jew and who is thus entitled to return from the Diaspora to “the
Jewish homeland—the Land of Israel.” All of these matters have con-
tributed to blurring the demarcation between state and synagogue.
Moreover, religious political parties bent on promoting specifically
religious interests and objectives have had significant influence in the
making of governments and state policies. As Goldberg and Reich
explain, the “permanence of the religious parties and their continued
participation in Israel’s political process skews the religious-secular
debate.” But if Orthodox forces have tried to colonize the state, they
have encountered the resistance of secular groups in the “perpetual
struggle to define the character and soul of the Jewish state.”
This struggle symbolizes the difficulty of establishing a wall of
separation between the sacred and the profane and the fluidity of rela-
tions between the two putative spheres. In a dialectical interaction,
religion and state clash against each other while simultaneously inter-
penetrating each other’s domain without ever losing their respective
autonomy. This is a far cry from the Jeffersonian wall of separation.
Let us now bring to a close this brief survey of the chapters con-
tained in this book. All the contributors agree that the tensions between
state and religion find no easy resolution. We are thus tempted to say
that, in spite of some problematic differences, Goldberg and Reich’s
conclusion about Israel may well sum up a general reality: “No clear
parameters have been established for the roles of the secular and reli-
gious elements and no written constitution articulates the precise role
of church and state in relations with each other, nor for the precise
powers and limitations of each concerning the other.”
Notes
1. Ronald Inglehart and Christian Welzel, Modernization, Cultural Change,
and Democracy (Cambridge: Cambridge University Press, 2005), 65.
2. See Kevin Phillips, American Theocracy (New York: Viking, 2006), 102.
3. Ibid., 206–8.
Pa rt I
The Amer ican Ex per ience:

The Jeffersonian Wall of
S eparation between
Church and State
Chapter 1
Thomas Jef f erson’s

Chr istian Nation
Peter Onuf
I n their 1861 Constitution, the Confederate States launched their

experiment in nation making by acknowledging their fealty to Jesus
Christ.1 Not to be outdone, Northerners proposed an amendment to
the federal Constitution in 1864 that would declare the United States
a “Christian nation.” Although the amendment did not succeed, it
garnered widespread support from religious people struggling to
make sense out of a seemingly endless war. The culmination of a great
sectional crisis that ruptured national church organizations, the Civil
War unleashed an extraordinary wave of popular piety and civic reli-
giosity. Armies destroyed each other and devastated the countryside,
but Christianity advanced, on the home front and in the trenches.
One nation, bound together by constitutional compromises, inter-
locking economic interests, and the great national parties of the Sec-
ond Party System, had become two Christian nations, driven to war
by a shared moral fervor.
The Civil War constituted a massive repudiation of the Founding
Fathers’ union, a plan for perpetual peace among the American states.
God may have been present at the founding, but he left the Found-
ers to their own enlightened devices. When Americans went to war
in 1861, demolishing the Founders’ great legacy, God seemed to be
taking a much more active role as Christians north and south invoked
and acknowledged His presence. “The only difference between them
18 Peter Onuf
and us,” Abraham Lincoln concluded in March 1865 with war’s end
in sight, “is the difference of circumstances.” Northerners and South-
erners “read the same Bible, and pray to the same God.”2 The motives
of the men who made the war were certainly mixed, even—in the
clear-eyed view of their enemies—sordid and self-seeking. But there
is no question that Northerners and Southerners alike responded to
the call to arms with patriotic enthusiasm, and that for vast numbers
of them patriotism was grounded in Christian faith. Perhaps the Civil
War was caused less by an “excess of democracy,” as revisionists once
argued, than by an “excess of piety.”3
A vision of Americans at war with one another was Thomas Jef-
ferson’s nightmare. The rupture of the union, he presciently warned
former congressman John Holmes of Massachusetts (Maine District)
in 1820, would be nothing less than “treason against the hopes of
the world.”4 And Jefferson, apostle of reason and avowed enemy of
“priestcraft,” would have been repelled by the ostentatious religiosity
of the Civil War generation and the prominent role assumed by the
clergy in bringing on and sustaining the war. Nor did the combatants,
as they mobilized powerful national war-making machines, adhere to
the Jeffersonian gospel of small government, strict construction, and
dedication to civil liberties. The distance between a peaceful union of
republican states and a state of war between “Christian” nations thus
seems unbridgeable, with Jefferson receding from view, on the far side
of a yawning chasm.
My purpose in this chapter is not to challenge this conventional,
commonsensical view, for these two pasts—the eras of the founding
and of the Civil War—are certainly “foreign countries” to each other,
as well as to us. Instead, I hope to illuminate the terrain, or “chasm,”
between them, suggesting ways in which Jefferson was implicated in
the transformations of the political and religious landscape that pre-
pared the way for the union’s collapse.
C ho sen Peoples
Jefferson’s conception of the union reflected the influence of Enlight-
enment political science, but he also envisioned a glorious future for
Americans as a chosen people in a “chosen” country that anticipated
the pervasive romantic—and Christian—nationalism of later genera-
tions. As the Missouri controversies of 1819–21 demonstrated, Jef-
ferson’s commitment to the union ultimately could not be reconciled
with more fundamental commitments to states’ rights and republican
government. In the midst of the first great struggle over the expansion
Thomas Jefferson’s Christian Nation 19
of slavery to the West, Jefferson foresaw the emergence of two hostile

and necessarily belligerent nations, defined by “a geographical line,
coinciding with a marked principle, moral and political.”5
The “restrictionists” who sought to keep slavery out of Missouri
were guilty of “treason” because they introduced a spurious “moral”
issue into American politics. Moral issues were divisive because they
were ultimately nonnegotiable: “Once conceived and held up to the
angry passions of men,” such a boundary “will never be obliterated.”
Jefferson’s advocacy of Missouri’s republican right to establish slavery
may have been predicated on his understanding of federalism, but
implicitly acknowledged the higher claims of the republic as a moral
community. Peaceful, noncoercive union could flourish on either side
of this “geographical line,” but any union that crossed the line would
be tenuous at best. Without a common moral foundation, Americans
no longer constituted a single people: they might “calculate” that
continuing union would serve their separate purposes, and they might
prudently seek to avoid the violent conflict its rupture would surely
entail. But once they had “conceived” and passionately embraced the
moral distinction that defined them apart, the “hopes of the world”
would be tragically disappointed.
Jefferson understood that the Missouri controversies raised funda-
mental questions about the moral foundations of American nation-
hood. It did not follow, however, that he acknowledged the moral
superiority of antislavery restrictionists. To the contrary, Jefferson was
prepared to see the union collapse rather than abandon his faith in the
capacity of a self-governing people—in Missouri, Virginia, and other
slave states—to achieve its own redemption through a self-generated
progress of moral improvement.6 To the end of his life, Jefferson
called for a state-sponsored program of emancipation and expatriation,
refusing to acknowledge the hopelessness of colonization. But Mis-
souri precipitated a reorientation in Jefferson’s thinking that focused
less on slaves’ removal than on the amelioration of their situation.7 By
emphasizing the way in which access to new western territory would
achieve a better balance between white and black populations, more
healthful environmental conditions, and the progressive mitigation of
a milder, more paternalistic regime of labor discipline, Jefferson and
other “diffusionists” pointed the way toward positive good, proslav-
ery arguments of a later generation.8 If slavery spread to Missouri and
in fact improved the condition of slaves, why shouldn’t slavery spread
everywhere? Of course, Jefferson did not reach this conclusion. But
he did insist that republicanism, the only solid foundation for moral
improvement, dictated that slaveholders must determine their own
20 Peter Onuf
destiny—and the destiny of their slaves as well. Not surprisingly, this

is precisely what happened. And not surprisingly, the pious Christians
who spearheaded reform efforts in the South would soon convince
themselves that the institution of slavery could be improved and,
finally, that it was itself a vehicle for improvement—and therefore the
Christian cornerstone of their claims to nationhood.9
Southern secessionists did not invoke Jefferson as their patron saint.
Jefferson’s states’ rights constitutionalism seemed increasingly irrel-
evant as the union collapsed and nation building became the order
of the day. It was instead Lincoln, in his determination to identify the
nation with the union, who invoked “mystic chords of memory” and
aligned him with Jefferson and the founders.10 Yet Jefferson’s concep-
tion of the moral foundations of American nationhood proved to be
a protean idea, adaptable to the nation-making imperatives of North-
erners and Southerners alike. And Jefferson’s “religious pilgrimage”
from Enlightenment deism to a highly idiosyncratic and republican-
ized Christianity tracked the progress of democratic revivalism in the
new nation that prepared righteous patriots to slaughter each other on
Civil War battlefields.11
Mo r al C ommuni ty :
R el ig io n and Repub li c ani sm
Jefferson’s republicanism was premised on the consent of contract-
ing individuals to secure and promote their common interests. When-
ever he emphasized individual rights, however, he also invoked the
communal contexts within which those rights could be sustained and
perfected. The classic exposition of natural rights in the second para-
graph of his Declaration of Independence thus followed an assertion
of Americans’ rights as “one people” to a “separate and equal station
. . . among the powers of the earth.”12 So, too, his understanding
of majority rule—the foundational principle of republican govern-
ment—was predicated on the claims of the living generation to self-
rule. The generation, or “people” now constituting a political society,
necessarily came first, making individual right claims possible. “Each
generation is as independent as the one preceding, as that was of all
which had gone before,” Jefferson concluded, “[T]he dead have no
rights.”13
Yet if each generation was “independent,” it was bound to its
successors by powerful moral obligations, to hold the “the earth
. . . in usufruct,” or stewardship. Jefferson’s vision of the nation, of
providing “for our descendants to the thousandth and thousandth
generation,” thus stood in counterpoint to his conception of genera-

tional sovereignty. Majority rule was not an end in itself, but became
morally meaningful through history. As he told Samuel Kercheval
in 1816, “[L]aws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed, and
manners and opinions change with the change of circumstances, insti-
tutions must advance also, and keep pace with the times.” Why, Jeffer-
son asked, should “civilized society . . . remain ever under the regimen
of their barbarous ancestors”? It was misplaced filiopietism, therefore,
to treat “constitutions with sanctimonious reverence and deem them
like the arc of the covenant, too sacred to be touched.”14
Jefferson was a paradoxical strict constructionist who did not revere
constitutions as sacred texts. It was morally imperative to treat the
works of constitution writers as if they were sacred, however, as long
as they expressed the will of the living generation; it was also impera-
tive for that generation to give way gracefully to the next, with the
common estate intact and improved, so that it in turn could express
its still more enlightened moral sense. “Our republicanism [is not] to
be found . . . in our constitution,” Jefferson concluded, “but merely
in the spirit of our people.”15 Constitution writers and constitutional
majorities would often be mistaken, but their mistakes could only be
seen clearly and rectified if each successive “independent” generation
were free to act according to its own lights.
Jefferson’s republican constitutionalism situated the citizen at the
intersection of two axes, one generational—linking him to all fellow
citizens at a given moment—and the other historical—linking his
generation to other generations across time. His moral and religious
thinking developed along the same lines. Like the republican citizen,
he was an independent, autonomous individual: “I am of a sect by
myself,” he wrote Ezra Stiles Ely in 1819. Refusing to identify with
any sect, particularly Ely’s fellow Calvinists, Jefferson instead followed
Jesus’s teachings, “to love our neighbors as ourselves, and to do good
to all men.” Like the Jews, Christian sectarians punished “the sins
of the fathers upon their children, unto the 3d. and 4th. genera-
tion,” making “a Babel of a religion the most moral and sublime ever
preached to man, and calculated to heal, and not to create differ-
ences.” Jesus, a “benevolent and sublime reformer,” taught “only that
god is good and perfect, but has not defined him.” Recognizing that
“we have neither words nor ideas adequate” to the definition of God,
his followers should spurn theological subtleties and mystifications. If
we would “leave the subject as undefinable, we should all be of one
22 Peter Onuf
sect”—the living generation of man—“doers of good and eschewers

of evil.”16
Jefferson attacked Calvinist conceptions of original sin as the
theological equivalent of aristocracy, the notion that “a favored few
booted and spurred” were born to ride on the backs of “the mass
of mankind.”17 The idea that man’s condition—spiritual or tempo-
ral—was inheritable, passing from one generation to the next, justi-
fied inequality and privilege and denied the unity of mankind. Just
as the select few, by the grace of a capricious God, enjoyed the boon
of eternal life, so too the “barbarous ancestors” who founded great
families achieved a kind of immortality in the power and privilege of
their descendants. If republican equality demanded the eradication
of “every fibre . . . of antient or future aristocracy,” including the
abolition of primogeniture and entail and the removal of all “feudal
and unnatural distinctions,” a true Christian community demanded
an end to the schisms fomented by sectarian theologians.18 Jefferson
defined the old regime as an unholy alliance of “kings, nobles, and
priests” that divided the people in order to rule them.19 Jefferson’s
Bill for Religious Freedom, he told John Adams in 1813, “put down
the aristocracy of the clergy, and restored to the citizen the freedom of
the mind,” thus making possible the progressive development of that
“entire union of opinion” that alone could guarantee the survival of
republican government.20
Jefferson’s republic, the living generation that subjected itself to
majority rule, was a moral community, independent of other genera-
tions but tied to them by awareness of its own place in history. Look-
ing back, Jefferson drew inspiration from “primitive Christianity, in all
the simplicity in which it came from the lips of Jesus.” Had it not been
for the mystifications of professed Christians who distorted Jesus’s
original meanings beyond recognition, Christianity “would at this day
have been the religion of the whole civilized world.”21 By separating
church and state and demolishing the pernicious influence of “priest-
craft,” the American Revolution cleared the way for the fulfillment of
Jesus’s benevolent teachings. As he looked forward to the progressive
enlightenment of future generations, Jefferson envisioned the emer-
gence of a Christian republic that would be a model for the “whole
civilized world.” The return to republican first principles in Jefferson’s
“Revolution of 1800” thus also promised the rout of the priests and
the spread of a reformed and enlightened Christianity. “Brought to
the original purity and simplicity of its benevolent institutor,” Jef-
ferson told Moses Robinson of Vermont, Christianity “is a religion of
all others most friendly to liberty, science, and the freest expansion of
the human mind.”22
Jefferson exulted in “the mighty wave of public opinion which has
rolled over . . . our Republic” in 1800, a “revolution of sentiment”
that promised to transform American hearts and minds.23 Far from
consigning religion and politics to separate spheres under the new
republican dispensation, Jefferson foresaw their ultimate convergence,
for an enlightened, purified Christianity—the religion of humanity
that Jesus had preached—constituted the only durable foundation
for republican self-rule. Jefferson thus anticipated and embraced the
democratic revivalism of the Second Great Awakening, even as he
jealously guarded his own privacy and refused to publicize—much
less proselytize—his own religious views. “Reading, reflection & time
have convinced me it is better to be quiet myself,” he told one cleri-
cal correspondent shortly after his retirement, “& let others be quiet
on these speculations.”24 Theological “speculations” were inevitably
presented as dogmatic absolutes, promoting schisms that subverted
community. “I inquire after no man’s” religious principles, Jefferson
wrote another clergyman, “and trouble none with mine.” “We have
heard it said that there is not a Quaker or a Baptist, a Presbyterian or
an Episcopalian, a Catholic or a Protestant in heaven; that, on entering
that gate, we leave those badges of schism behind, and find ourselves
united in those principles only in which God has united us all.”25
Jefferson envisioned the future of the republic as a kind of heaven
on earth. “Oceans of human blood” would no longer be spilled in the
name of Christ and good citizens would recognize “how insoluble”
abstruse theological “questions are by minds like ours, how unimport-
ant, & how mischievous; & to consign them to the sleep of death.”
Jefferson’s silence was, of course, self-protective, but the precociously
enlightened self he was protecting had recognized the meaningless-
ness of theological disputation and acknowledged the “obligation of
the moral precepts of Jesus.”26 His spiritual quest thus isolated him
from his own less enlightened generation, even while it deepened his
commitment to the conscientious, consenting, autonomous individual
as the source of legitimate authority and moral improvement. Should
he testify to his own faith, his words surely would be misinterpreted,
thus contributing to the religious “Babel” that jeopardized the peace
of the republic. Jefferson believed that that Babel would give way
to harmony as Americans learned to live together, first by respecting
each other’s professed beliefs and finally by discovering their com-
mon principles. “By bringing the sects together” at the University of
Virginia “and mixing them with the mass of other students, we shall
24 Peter Onuf
soften their asperities, liberalize and neutralize their prejudices, and

make the general religion a religion of peace, reason, and morality.”27
Jefferson’s belief in moral progress, becoming manifest in the
spread of more enlightened forms of Christianity, was predicated on
the “reading and reflection” that enabled him both to grasp the pure,
uncorrupted teachings of Jesus and to anticipate a post-theological
and sectarian future in which science, religion, and republicanism
converged.
Th e U nita r i an Rev i val

Jefferson saw his election to the presidency as a triumph of “science &
honesty” over the “bigotry in Politics & Religion” that had gripped
the nation during the dark days of High Federalist ascendancy.28 The
“Revolution of 1800” was a “reformation” that guaranteed the sepa-
ration of church and state and prepared the way for the spread of a
more enlightened, purified Christianity. Republicans would heal the
wounds that “schismatising” priests had inflicted on the body poli-
tic.29 Perhaps, Jefferson hoped, the political “regeneration of Rhode
Island” would mark “the beginning of that resurrection of the genu-
ine spirit of New England which rises for life eternal.” The Republi-
can revival began at the grass roots—“among the people, the schism
is healed”—and would culminate in the demolition of church estab-
lishments.30 In the meantime, Jefferson expected “no mercy” from
his embattled clerical enemies. The priests had “crucified their Sav-
iour, who preached that their kingdom was not of this world; and all
who practise on that precept,” including Jefferson, “must expect the
extreme of their wrath.” If the “laws of the present day withhold their
hands from blood,” the new president told his attorney general, Levi
Lincoln of Massachusetts, “lies and slander still remain to them.”31
Jefferson’s highly idiosyncratic version of Christianity grew out of
his identification with Jesus as a fellow reformer and was reinforced
by his painstaking collection of extracts from the gospel. If Jeffer-
son, unlike Jesus, remained mute about his own religious beliefs,
it was because Jesus’s uncorrupted “system of morals” was already
“the most perfect and sublime that has ever been taught by man.”
Jefferson’s Jesus, a precocious Enlightenment moral philosopher,
inculcated “universal philanthropy, not only to kindred and friends,
to neighbors and countrymen, but to all mankind, gathering all into
one family, under the bonds of love, charity, peace, common wants
and common aids.” The great challenge for contemporary Christians
was to strip away “the corruptions of schismatising followers,” not to
add new layers of commentary and exegesis that would only confound
and confuse Jesus’s simple message. In the privacy of his study, Jeffer-
son eliminated rubbish from the Bible, so proving to himself that his
republicanism and “primitive Christianity” were in perfect accord.32
With liberty of conscience guaranteed by separation of church and
state, good republicans would follow Jefferson’s lead, embracing the
tenets of an enlightened Christianity that promoted union, not schism.
Preserving religious freedom was a religious and political imperative,
as Jefferson told Baltimore Baptists in 1808: “[A] recollection of our
former vassalage in religion and civil government, will unite the zeal
of every heart, and the energy of every hand, to preserve that inde-
pendence in both which, under the favor of Heaven, a disinterested
devotion to the public cause first achieved, and a disinterested sacrifice
of private interests will now maintain.”33
Jefferson’s alliance with the evangelical Christians who had helped
overthrow the Virginia establishment and who now provided crucial
support in the Republican campaign to regenerate New England was
not merely opportunistic. Jefferson welcomed the emergence of a
competitive religious marketplace that showed that “freedom of reli-
gion is compatible with order in government, and obedience to the
laws.”34 Moreover, the revivals that transformed the American reli-
gious landscape during the Second Great Awakening promised to
subvert and even reverse the historic relationship between organized
religion and the old regime of hierarchy and inequality: patriotic evan-
gelicals preached up republicanism.35 Their growing popularity was
thus a hopeful augury. “No information could be more welcome,”
Jefferson told Methodists in New London, Connecticut, on the eve
of his retirement, than reports of “larger additions than have been
usual, to their several associations, and I trust that the whole course
of my life has proved me a sincere friend to religious as well as civil
liberty.”36
Jefferson’s understanding of the Awakening was obviously partial,
and certainly distorted by partisan political considerations. But Jef-
ferson was heartened by evangelical challenges to the ecclesiology and
theology of “established” churches, whether from a liberal, Unitarian
direction or from a more populist, democratic direction, with Bap-
tists, Methodists, Disciples of Christ, or other popular sects leading
the way. Competition in the religious marketplace reinforced affinities
between popular Christianity and republicanism as churches empha-
sized their fealty to the American Revolution and gained legitimacy
by breaking institutional ties with British coreligionists.37 Revivalists
expressed and exploited antiaristocratic and antihierarchical impulses
26 Peter Onuf
by promoting more “democratic,” congregational forms of church

governance and by simple and direct appeals that made the Christian
gospel intelligible to common folk.
The evangelicals’ “heart-religion” helped create a commonsensi-
cal, sentimental common ground with more rational Christians and
Deists. Jefferson was not greatly concerned about the enthusiastic
excesses of the revivals, as he told his old friend John Adams in 1816,
for the “enthusiasm of the free and buoyant” was much preferable to
bigotry, “the disease of ignorance, of morbid minds.” The Awakening
promoted the “free discussion” that would enable Americans to heal
schismatic wounds. Enlightened evangelists looked beyond theologi-
cal distinctions that sectarians emphasized to the happy “prospect of a
restoration of primitive Christianity.”38 Jesus’s “doctrines are levelled
to the simplest understandings,” Jefferson wrote Salma Hale in 1818,
and it was only by “getting back to the plain and unsophisticated
precepts of Christ, that we become real Christians. The half reforma-
tion of Luther and Calvin did something towards a restoration of his
genuine doctrines; the present contest will, I hope, compleat what
they begun, and place us where the evangelists left us.”39
Jefferson’s assessment of the progress of popular Christianity in
the Second Great Awakening is most conspicuous in his enthusiastic
embrace of the Unitarian revival. As he told Adams, the great Unitar-
ian Joseph Priestley had taught him “that Unitarianism was really the
religion of all” in England—if only English Christians “would candidly
examine themselves, and confess.” Of course, a powerful established
church in England had a vested interest in promoting “Platonic mysti-
cisms”—most notably, the nonsensical Trinitarian formula “that three
are one, and one is three; and yet the one is not three, and the three
are not one”—and Priestley was driven into American exile. Thanks to
liberty of conscience in the United States, however, the priests’ “gos-
samer fabrics of factitious religion” would be swept away “and they
would catch no more flies.”40 If the English were “really” Unitarian,
so surely were the Americans, as they would discover through the
“free discussion” that the Awakening promoted. As they sloughed off
theological distinctions and returned to the eternal truths of Jesus’s
teachings, republicans would recognize that they had always “really”
been Unitarians, too.
Jefferson conceived of Unitarianism as an all-embracing republican
Christianity, not as yet another sect among many. “Be this the wis-
dom of Unitarians,” he enjoined Benjamin Waterhouse at Harvard,
“this the holy mantle which shall cover within its charitable circum-
ference all who believe in one God, and who love their neighbor!”41
Unitarianism was both the starting point—the religion of humanity

that Jesus had preached—and its ultimate end. As he famously wrote
Waterhouse in 1822,
Had the doctrines of Jesus been preached always as pure as they came
from his lips, the whole civilized world would now have been Christian.
I rejoice that in this blessed country of free inquiry and belief, which
has surrendered its creed and conscience to neither kings nor priests,
the genuine doctrine of one only God is reviving, and trust that there
is not a young man now living in the United States who will not die an
Unitarian.42
Jefferson’s “Unitarians” would not be the advocates of particu-

lar creeds or doctrines. Instead, he imagined enlightened and there-
fore creedless Christians transcending the sectarian Babel. They
should not allow differences of opinion to ossify into divisive doctri-
nal tests, instead following the “happy example” of “the exemplary
and unschismatising society of the Friends.” Alone among professed
modern “Christians,” the Quakers enjoyed the “harmony, the quiet,
the brotherly affections” that Jesus preached, Jefferson’s image of
“heaven” on earth.43
Jefferson did not want to be drawn into doctrinal controversies, and
he hoped Unitarians would pursue the same enlightened policy. Just as
Jefferson suffered abuse at the hands of pseudopious critics, so too the
“internecine rage of all other sects” was directed at the Unitarians.44
Unitarian “missionaries” to Virginia would doubtless “be excluded by
our hierophants from their churches and meeting houses,” Jefferson
told Waterhouse, “but would be attended in the fields by whole acres
of hearers and thinkers.” The time was ripe for the culminating phase
of revivalism in Virginia: “[T]he breeze begins to be felt which pre-
cedes the storm; and fanaticism is all in a bustle,” Jefferson wrote. “I
am in hopes that some of the disciples of your institution will become
missionaries to us, of these doctrines truly evangelical, and open our
eyes to what has been so long hidden from them. A bold and eloquent
preacher would be nowhere listened to with more freedom than in
this state, nor with more firmness of mind.”45
Jefferson’s image of a Unitarian camp meeting, a perfect “storm”
that would cleanse the atmosphere, was meant to be fanciful, to evoke
that distant day when “freedom of religion” finally would enable
“truth” to “prevail over fanaticism” and the “genuine doctrines of
Jesus” were “restored to their original purity.” This would not be the
work of a day. After all, Jefferson’s own religious pilgrimage had been
28 Peter Onuf
the product of many hard years of reading and reflection. Enlighten-

ment would spread unevenly. Young women, as his letter to Water-
house suggests, were likely to remain Trinitarian after “young men”
had seen the light.46 But the gender gap did not distress Jefferson:
perhaps the “natural” differences between the sexes, and women’s
dependence on male “patriarchs,” made more traditional conceptions
of hierarchy and authority more “natural” for them. Jefferson was
more concerned by the vulnerability of boys to false counsel and bad
books—and premature Bible reading.47 Youth needed to be protected
against theological mystifications of preachers who would lead them
astray and out of the orbit of family governance where republican hab-
its would be formed before reasoning powers had matured.48
The preachers’ “Abracadabra of the mountebanks calling themselves
the priests of Jesus” would poison young minds until the “antidotes”
of “education and free discussion” were generally administered.49 But
Jefferson was convinced that the significance of doctrinal tests was
steadily diminishing and that Christians of different denominations
were beginning to recognize their similarities. In Charlottesville, Jef-
ferson told Thomas Cooper, “Episcopalian and Presbyterian, Method-
ist and Baptist, meet together . . . in perfect harmony” at the county
courthouse, “the common temple.”50 Perhaps it was not too much
to hope that all “Christian sects would rally to the Sermon in the
mount,” Jefferson told another correspondent, and “make that the
central point of Union in religion, and the stamp of genuine Chris-
tianity.”51 In the meantime, the religious marketplace helped make
Christians republicans, putting a premium on consent and choice and
underscoring the autonomy and responsibility of the conscientious
self. Even when believers continued to subscribe to the archaic tenets
of a less enlightened age, the relocation of religious authority to the
individual required “men to think for themselves” and to respect the
liberty of conscience.52 Without religious freedom, progress would be
impossible: enlightened thinkers such as Jefferson would be subjected
to the inquisitorial tyranny of a repressive “public opinion” manufac-
tured by a clerical elite seeking to regain its privileged position.
Jefferson glimpsed the dawning of a new day when “the same free
exercise of private judgment which gave us political reformation will
extend its effects to that of religion.”53 The Unitarian revival renewed
his faith in the union, leading to a cordial correspondence with former
High Federalist foe Timothy Pickering. Exulting in the “progress of
reason in its advances toward rational Christianity,” he told Picker-
ing he had “little doubt that the whole of our country will soon be
rallied to the unity of the Creator, and, I hope, to the pure doctrines of
Jesus also.”54 Unitarian missionaries constituted a vanguard of popular

religious enlightenment that would fulfill the American Revolution’s
promise. “The pure and simple unity of the Creator of the universe,
is now all but ascendant in the Eastern States,” Jefferson wrote Uni-
tarian James Smith in late 1822: “[I]t is dawning in the West, and
advancing towards the South; and I confidently expect that the pres-
ent generation will see Unitarianism become the general religion of
the United States.”55
C o u nter revo luti onary Tendenci es

In his declining years Thomas Jefferson cherished an optimistic
vision of the United States as a progressive and enlightened Christian
nation. This optimism stood in sharp contrast to persistent anxieties
about the success of the republican experiment. Jefferson feared that
“schismatic” religious leaders, yearning for the reunion of church and
state, would constitute the counterrevolutionary vanguard. Ameri-
cans might celebrate the revolutionary republican legacy of 1776, but
“priests” would exploit popular ignorance and credulity to carve out a
privileged position for themselves and recapture the state. This is why
Jefferson was so committed to separation of church and state. His
“wall of separation” would further preempt future establishments—
but only if vigilant republicans guarded against breaches.56
Jefferson’s anticlericalism should not be confused with a secular
hostility toward religion generally. To the contrary, it was his grow-
ing self-consciousness as a “Christian” that sustained his hostility to
“priests” and “priestcraft,” particularly as they took on an ostensi-
bly patriotic “American” and “republican” coloration. The apparent
paradox is that antiestablishment and anticlerical sentiment—broadly
shared by dissenting groups all over the country—was itself a spur
to religious mobilization and the spread of popular piety. Jefferson
enthusiastically endorsed aspects of the democratizing religious fer-
ment of the Second Great Awakening. Yet he was reflexively hostile
to the “Benevolent Empire,” the aggressive evangelical front of the
mainstream churches that emerged with the dismantling of the last
remaining establishments in New England.
State-making reform efforts of National Republicans—including
the colonization of former slaves—raised the specter for Jefferson
and Old Republican allies of recrudescent priestly power.57 Jefferson’s
primary reflex in the period of the Missouri controversy was not there-
fore necessarily to defend states’ rights or the “peculiar institution,”
30 Peter Onuf
but rather to contain and roll back insidious clerical influence (with its
disingenuous philanthropic appeal) that threatened to reestablish the
old regime. By the same token, Jefferson’s hatred of High Federal-
ists reflected his animus toward the Calvinist Presbyterians who sup-
posedly infested their ranks. This seemingly paranoid defensiveness
accorded with the pious reflexes of anti-institutional Christians who
feared assaults on their Christian liberty. In this fundamental respect,
Jefferson was hardly unusual, less an interested observer of the Sec-
ond Great Awakening than a participant in it, responsive as he was to
some of the leading tendencies of its pietistic, anti-institutional wing.
Yet whatever his affinities for Old Republicanism and varieties of
“democratic” Christianity that flourished in the South, Jefferson was
at the same time an exponent of the enlightened, forward-looking
Christianity that New England Unitarians were supposedly begin-
ning to preach. The vision of a triumphant Unitarian revival reminds
us that Jefferson still had great hopes for the American nation, even
as he aligned himself with Old Republican resistance to “consolida-
tion.” Jefferson’s conception of American nationhood gained new
power as the United States became more “Christian” in the wake of
successive revivals.
The rupture of the churches in the years leading up to the Civil
War—Presbyterians in 1838, Methodists in 1844, and Baptists in
1845—was the leading institutional legacy of the Second Great Awak-
ening and its extraordinary evangelical successes.58 The danger of
national church organizations was that they were so vulnerable to cap-
ture by clerical elites with distinctive sectional agendas, thus jeopardiz-
ing the “peculiar” interests of sectional minorities. More ominously
still, these elites would lay the spiritual foundation for “priestly” influ-
ence in a consolidated national government. In short, the complete
separation of church and state that, for Jefferson, was essential to the
moral and spiritual development of an enlightened, republican Chris-
tianity, remained at risk. The unholy alliance of church and state was
the most fundamental threat to America’s republican experiment—
and to Christianity itself.
The United States became an increasingly Christian nation and,
with the collapse of the union, two Christian nations because of the
creative tensions of a robust religious marketplace. The institution
building that brought the gospel to Americans unleashed counter-
vailing anti-institutional and anticlerical impulses. Separation, the
most fundamental Protestant impulse, was crucial to this Christian-
izing process.
In the founding era, Jefferson and his fellow revolutionaries cam-

paigned for the formal separation of church and state in order to
uproot and demolish the old regime. Far from banishing religion
from the “public square,” this constitutional separation unleashed a
tremendous outburst of religious energy that authorized a providen-
tial conception of America’s role in world history: the new nation’s
rising and expansive power was inextricably linked with the progress
of Christian civilization. But the spread of Christianity through the
revivals of the Second Great Awakening also illuminated important,
even fundamental differences among Americans—particularly over
the issue of slavery—and guaranteed that those differences would
increasingly be understood in moral terms. After the War of 1812,
National Republican efforts to transform the nation through “inter-
nal improvements,” including the emancipation and colonization of
slaves, generated an anticonsolidationist backlash; meanwhile, the rise
of a “Benevolent Empire” dedicated to the moral and spiritual uplift
of the semisavage, unchurched masses led to growing tensions within,
and the ultimate rupture of, national church organizations. Disunion
within the Protestant denominations previewed the secession of the
Southern states, and this sectional separation climaxed in yet another
“awakening,” a mass political and military mobilization that enlisted
faithful Christians in the sacred cause of fulfilling the promise of
nationhood—and of slaughtering one another.
To say that Thomas Jefferson was responsible for this tragic out-
come is of course absurd. But I would insist that it is equally absurd
to isolate him from the developments that culminated in the carnage
of the Civil War. The stock image of Jefferson as an Enlightenment
Deist who had long outlived his time by the time of his death in 1826
is belied by his own progress as a “Christian,” however idiosyncratic
his faith may now seem. Disestablishment in Virginia and throughout
the union cleared the way for the emergence of a reformed Christi-
anity that was truer to Jesus’s uncorrupted teachings and therefore
truer to the genius of a self-governing people. Obsessed with the
insidious power and influence of “priestcraft,” Jefferson was much
less concerned about the enthusiastic excesses of heartfelt piety. He
welcomed the emergence of the robust religious marketplace he
had helped create: competition among proliferating sects gave rise
to more democratic forms of church organization, to simpler, more
direct theological appeals, and to less and less emphasis on the doc-
trinal differences that had justified religious wars and the spilling of
“oceans of human blood” throughout human history.59 In Jefferson’s
hopeful perspective, a new day was dawning, and at the end of that
32 Peter Onuf
day, the republican revolutionaries’ “enlightenment” and the revival-

ists’ “awakening” would converge.
Jefferson conceived of the republic as a moral community and of
the United States—the union of American republics—as a great nation
with a providential role in world history. Clearly, the collapse of the
Union marked the failure of that vision, and therefore “treason against
the hopes of the earth.” Yet it is also true that Jefferson’s conception
of the nation resonated on both sides of the great sectional divide,
though Northerners and Southerners were more likely to invoke Jesus
than Jefferson as they spilled each other’s blood.60
Notes
1. I rely here on Adam Jortner, “Confederate Christianity: The Case for
Continuity” (unpublished paper in my possession, n.d.).
2. Second Inaugural Address, Mar. 4, 1865, in Roy P. Basler, ed., Collected
Works of Abraham Lincoln, 9 vols. (New Brunswick, NJ: Rutgers Univer-
sity Press, 1953–55), 8:333.
3. Roy F. Nichols, The Disruption of American Democracy (New York: Free
Press, 1967).
4. Thomas Jefferson (hereafter TJ) to John Holmes, Apr. 22, 1820, in Mer-
rill D. Peterson, ed., Thomas Jefferson Writings (New York: Library of
America, 1984), 1435.
5. Ibid., 1434. For further discussion of TJ and Missouri, see my Jefferson’s
Empire: The Language of American Nationhood (Charlottesville: Univer-
sity of Virginia Press, 2000), chap. 5.
6. For a fuller discussion of the moral dimensions of TJ’s republicanism,
see Ari Helo and Peter Onuf, “Jefferson, Morality, and the Problem of
Slavery,” William and Mary Quarterly 60 (2003), 583–614.
7. I am indebted to Christa Dierksheide’s dissertation-in-progress,
“The Amelioration of Slavery in the Anglo-American Imagination,
1780–1840.”
8. On diffusion, see TJ to John Holmes, Apr. 22, 1820: “[D]iffusion over
a greater surface would make them individually happier, and proportion-
ally facilitate the accomplishment of their emancipation, by dividing the
burthen on a greater number of coadjutors. An abstinence too, from this
act of power, would remove the jealousy excited by the undertaking of
Congress to regulate the condition of the different descriptions of men
composing a State.” Peterson, Jefferson Writings, 1434. See Adam Roth-
man, Slave Country (Cambridge, MA: Harvard University Press, 2005),
213: “[A]melioration of slaves’ condition,” yoked “the new proslavery
humanitarianism to the expansion of slavery.”
9. Nicholas Onuf and Peter Onuf, Nations, Markets, and War: Modern His-
tory and the American Civil War (Charlottesville: University of Virginia
Press, 2006), chap. 10. I am indebted to Charles F. Irons, The Origins

of Proslavery Christianity: White and Black Evangelicals in Colonial and
Antebellum Virginia (Chapel Hill: University of North Carolina Press,
2008).
10. On Lincoln’s appropriation of TJ, see Harry Jaffa, Crisis in the House
Divided: An Interpretation of the Issues of the Lincoln-Douglas Debates
(1959; Chicago: University of Chicago Press, 1982).
11. The best introduction to TJ’s religious thought is Eugene R. Sheridan,
Jefferson and Religion (Charlottesville: Thomas Jefferson Memorial
Foundation, 1998), originally published as the introduction to Dickin-
son W. Adams, ed., Jefferson’s Extracts from the Gospels: The Papers of
Thomas Jefferson, 2d ser. (Princeton, NJ: Princeton University Press,
1983). See also Charles B. Sanford, The Religious Life of Thomas Jeffer-
son (Charlottesville: University of Virginia Press, 1984); Paul K. Conkin,
“The Religious Pilgrimage of Thomas Jefferson,” in Peter S. Onuf, ed.,
Jeffersonian Legacies (Charlottesville: University of Virginia Press, 1993),
19–49; Edwin S. Gaustad, Sworn on the Altar of God: A Religious Biog-
raphy of Thomas Jefferson (Grand Rapids, MI: William B. Eerdmans Pub-
lishing Company, 1996); Andrew Burstein, Jefferson’s Secrets: Death and
Desire at Monticello (New York: Basic Books, 2005), chap. 9, “Disavow-
ing Dogma,” 237–63; and my “Religion: Priestcraft, Enlightenment,
and the Republican Revolution,” in Peter S. Onuf, The Mind of Thomas
Jefferson (Charlottesville: University of Virginia Press, 2007), 139–68.
12. The Declaration of Independence as Adopted by Congress, July 4, 1776,
in Julian Boyd et al., eds., The Papers of Thomas Jefferson, 34 vols. (Princ-
eton, NJ: Princeton University Press, 1950–ongoing), 1: 429.
13. TJ to Samuel Kercheval, July 12, 1816, in Peterson, Jefferson Writings,
1402. See also TJ to James Madison, Sept. 6, 1789, in Boyd, Jefferson
Papers, 14:392–98. The best discussion of this important letter is in Her-
bert Sloan, “The Earth Belongs in Usufruct to the Living,” in Onuf,
Jeffersonian Legacies, 281–315.
14. TJ to Samuel Kercheval, July 12, 1816, in Peterson, Jefferson Writings,
1401.
15. Ibid., 1397.
16. TJ to Ezra Stiles Ely, June 25, 1819, in Adams, Jefferson’s Extracts from
the Gospels, 387.
17. TJ to Roger Weightman, June 24, 1826, in Peterson, Jefferson Writings,
1517.
18. TJ, Autobiography, Jan. 6–July 29, 1821, ibid., 44.
19. TJ to George Wythe, Aug. 13, 1786, in Boyd, Jefferson Papers,
10:244–45.
20. TJ to John Adams, Oct. 28, 1813, in Lester J. Cappon, ed., The Adams-
Jefferson Letters, 2 vols. (Chapel Hill: University of North Carolina Press,
1959), 2:389–90, my emphasis; Second Inaugural Address, Mar. 4,
1805, in Peterson, Jefferson Writings, 523.
34 Peter Onuf
21. TJ to John Davis, Jan. 18, 1824, in Adams, Jefferson’s Extracts from the
Gospels, 413.
22. TJ to Moses Robinson, Mar, 23, 1801, in Peterson, Jefferson Writings,
1086–87. See Robert M. S. McDonald, “Was There a Religious Revolu-
tion of 1800?” in James Horn et al., eds., The Revolution of 1800 (Char-
lottesville: University of Virginia Press, 2002), 173–98.
23. TJ to Joseph Priestley, Mar. 21, 1801, and TJ to Elbridge Gerry, Mar.
29, 1801, ibid., 1086, 1088.
24. TJ to James Fishback, Sept. 27, 1809, J. Jefferson Looney et al., eds.,
The Papers of Thomas Jefferson, Retirement Series, 4 vols. (Princeton, NJ:
Princeton University Press, 2004–ongoing), 1:564–65.
25. TJ to Miles King, Sept. 26, 1814, in Andrew A. Lipscomb and Albert
Ellery Bergh, eds., The Writings of Thomas Jefferson, 20 vols. (Washing-
ton, DC; Thomas Jefferson Memorial Association, 1903–4), 14:198.
26. TJ to James Fishback, Sept. 27, 1809, in Looney, Jefferson Papers, Retire-
ment Series, 1:564.
27. TJ to Thomas Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings,
1465.
28. TJ to Joseph Priestley, Mar. 21, 1801, ibid., 1073.
29. TJ’s Syllabus of an Estimate of the Merits of the Doctrines of Jesus,
enclosed in TJ to Benjamin Rush, Apr. 21, 1803, ibid., 1125.
30. TJ to Gideon Granger, May 3, 1801, in Lipscomb and Bergh, Writings
of Jefferson, 10:259–60.
31. TJ to Levi Lincoln, Aug. 26, 1801, ibid., 10:275–76.
32. TJ’s Syllabus of the Doctrines of Jesus, Apr. 21, 1803, in Peterson, Jef-
ferson Writings, 1125.
33. TJ to the Members of the Baltimore Baptist Association, Oct. 17, 1808,
in Lipscomb and Bergh, Writings of Jefferson, 16:317–18.
34. TJ to the General Meeting of Correspondence of the Six Baptist Associa-
tions Represented at Chesterfield, VA, Nov. 21, 1808, ibid. 16:320–21.
35. My discussion here is heavily indebted to Nathan O. Hatch, The Democ-
ratization of American Christianity (New Haven, CT: Yale University
Press, 1989), and Richard Carwardine, “‘Shall a Nation Be Born at
Once?’ Evangelical Religion in the Construction of the United States,
1776–1865” (Birkbeck Lectures, University of London, 2004).
36. TJ to the Society of the Methodist Episcopal Church at New London,
Feb. 4, 1809, in Lipscomb and Bergh, Writings of Jefferson, 16:332.
37. On the “Americanization” of the Baptists, see Irons, Origins of Proslav-
ery Christianity; for an excellent discussion on the Methodists, see Car-
wardine’s first lecture in “‘Shall a Nation Be Born at Once?’”
38. TJ to Dr. Benjamin Waterhouse, July 19, 22, 1822, in Adams, Jefferson’s
Extracts from the Gospels, 407.
39. TJ to Salma Hale, July 26, 18[18], ibid., 385.
40. TJ to John Adams, Aug. 22, 1813, in Cappon, Adams-Jefferson Letters,
2:368.
41. TJ to Benjamin Waterhouse, June 26, 1822, in Peterson, Jefferson Writ-

ings, 1459.
42. Ibid.
43. TJ to Rev. Thomas Whittemore, June 5, 1822, in Adams, Jefferson’s
44. Ibid.
45. TJ to Dr. Benjamin Waterhouse, July 19, 22, 1822, in Adams, Jefferson’s
46. “There is much fanaticism” in Richmond, TJ wrote in 1822, “but chiefly
among the women.” TJ to Thomas Cooper, Nov. 2, 1822, in Peterson,
Jefferson Writings, 1464. On TJ’s attitudes toward gender differences
and religion, see Jan Lewis, The Pursuit of Happiness: Family and Values
in Jefferson’s Virginia (New York: Cambridge University Press, 1983),
chap. 2.
47. TJ to Peter Carr, Aug. 10, 1786, in Peterson, Jefferson Writings, 902:
“Read the Bible then, as you would read Livy and Tacitus.”
48. Religious differences across racial lines were rationalized by slavehold-
ers in similar ways; by the same logic, their responsiveness to the slaves’
enthusiastic heart-religion reinforced the sentimental notion of shared
family values and sensibilities.
49. TJ to Francis Adrian Van der Kemp, July 30, 1816, in Adams, Jefferson’s
Extracts from the Gospels, 374–75; TJ to John Adams, Aug. 1, 1816, in
Lipscomb and Bergh, Writings of Jefferson, 15:58–59.
50. TJ to Thomas Cooper, Nov. 2, 1822, in Peterson, Jefferson Writings,
1464. See Mark Beliles, “The Christian Communities, Religious Reviv-
als, and Political Culture of the Central Virginia Piedmont, 1737–1813,”
in Garrett Ward Sheldon and Daniel L. Dreisbach, eds., Religion and
Political Culture in Jefferson’s Virginia (Lanham, MD: Rowman & Lit-
tlefield, 2000), 3–40.
51. TJ to George Thacher, Jan. 26, 1824, in Adams, Jefferson’s Extracts from
the Gospels, 414.
52. TJ to Margaret Bayard Smith, Aug. 6, 1816, in Lipscomb and Bergh,
Writings of Jefferson, 15:59–61.
53. TJ to John Davis, Jan. 18, 1824, in Adams, Jefferson’s Extracts from the
Gospels, 413.
54. TJ to Timothy Pickering, Feb. 27, 1821, in Lipscomb and Bergh, Writ-
ings of Jefferson, 16:323–24.
55. TJ to James Smith, Dec. 8, 1822, ibid., 15:409. See also TJ to Cooper,
Nov. 2, 1822, in Peterson, Jefferson Writings, 1465: Unitarianism “will,
ere long, be the religion of the majority from north to south, I have no
doubt.”
56. TJ to Messrs. Nehemiah Dodge and Others, a Committee of the Dan-
bury Baptist Association, Jan. 1, 1802, ibid., 510. For the restored text
of TJ’s original draft and commentary, see James H. Hutson, “Thomas
Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,”
36 Peter Onuf
William and Mary Quarterly, 3d ser., 56 (1999): 775–90. On church

and state issues, see Daniel L. Driesbach, Thomas Jefferson and the Wall
of Separation Between Church and State (New York: New York University
Press, 2002). See also Philip Hamburger, Separation of Church and State
(Cambridge, MA: Harvard University Press, 2002), 144–89.
57. On the connections between National Republicanism and colonization
see Tony Iacarrino’s “Masters of the Republic: Virginia and the National
Contest over Slavery in the Early Republic,” unpublished ms. in author’s
possession.
58. Here I rely on Carwardine, “‘Shall a Nation Be Born at Once?’” Lecture
Three; and Mitchell Snay, Gospel of Disunion: Religion and Separatism in
the Antebellum South (1993; Chapel Hill: University of North Carolina
Press, 1997).
59. TJ to James Fishback, Sept. 27, 1809, in Looney, Jefferson Papers, Retire-
ment Series, 1:564.
60. Onuf and Onuf, Nations, Markets, and War, esp. chap 7.
Chapter 2
Beyond Locke, beyond Belief

The N exus o f Free E x erci se a nd
Separ atio n o f Chu rch a nd Stat e
Jack N. Rakove
One of the great pleasures of writing history is to capture a thinker

in mid-thought, recognizing a problem, sensing an opportunity, and
grappling with a solution. One such historical moment occurred in
the fall of 1776, when Thomas Jefferson took his seat in the first
legislature elected under the new constitution, with its accompanying
Declaration of Rights, that Virginia had adopted in the late spring,
scant weeks before the Continental Congress approved the Declara-
tion of Independence. If Jefferson could have had his way, he would
have been back in sleepy Williamsburg, his old college town, working
on the constitution, rather than stuck in bustling Philadelphia, slaving
away on the document that established his eternal fame. In Jefferson’s
advanced view, the formation of new governments had become “the
whole object of the present controversy” with Great Britain.1 He
regarded those governments not simply as means to wage revolution-
ary war against an evil empire, but as a fulfillment of the ideals that
the republican enthusiasm of the moment had released. High among
his own ideals was the liberation of individuals from the various forms
of dominion that he and other enlightened thinkers regarded as the
depressing legacy of centuries of religious intolerance, persecution,
and a corrupting alliance between church and state.
38 Jack N. Rakove
The enlightened thinkers whom Jefferson esteemed included John

Locke and his pupil, Anthony Ashley Cooper (third Earl of Shaftes-
bury and grandson of Locke’s patron, the first earl). Jefferson turned
(or returned) to their writings as he worked on his bill “for Disestab-
lishing the Church of England and for Repealing Laws Interfering
with Freedom of Worship.” We know this because his reading notes
on Locke’s Letter concerning Toleration and Shaftesbury’s Letter con-
cerning Enthusiasm are preserved in his papers at the Library of Con-
gress. Near the end of the notes on Locke, Jefferson summarized the
categories of persons whom the English philosopher thought could be
legitimately denied toleration because they entertain “op[inio]ns con-
trary to those moral rules necessary for the preservation of society.”
Though Locke defined these categories in terms of the principles such
people held rather than their avowed adherence to particular creeds,
he effectively denied toleration to Catholics, atheists, and those “who
will not own and teach the duty of tolerating all men in matters of
religion.” Jefferson then added his own revealing comment on Locke:
“It was a great thing to go so far (as he himself sais of the parl[iament]
who framed the act of toler[atio]n) but where he stopped short, we
may go on.”2
Asking what it meant to “go on”—to go beyond Locke and late
seventeenth-century ideas of toleration—is where we capture the
moment of opportunity that Jefferson hoped the Committee on Reli-
gion would seize. It was on this committee that Jefferson first met
James Madison, beginning their half-century political alliance and
friendship. Madison, too, thought that the time had come to “go
on.” Back in May 1776 he had proposed a key change in the Religion
Clause of the Declaration of Rights. The original draft read “that all
men should enjoy the fullest toleration” in their religious opinions.
Madison favored a broader dispensation and offered more expansive
language: “that all men are equally entitled to enjoy the free exercise
of religion, according to the dictates of conscience.”3 Embedded in
this amendment were two shifts—one pronounced, the other more
subtle—from the original article. The first, and more explicit, was a
shift from the language of toleration, implying a residual authority in
the state to extend or withdraw a privilege, to the language of entitle-
ment; that is, to the idea that the right to religion inhered in the indi-
vidual, not the state. The second, and more latent, shift hinged on the
definition of “exercise.” Was this single word synonymous with belief,
defined as an interior state of mind or conviction? Or did it portend
something broader: a right to practice, and thus to behave (and not
merely think) in ways consistent with, religious beliefs?
Beyond Locke, beyond Belief 39
The very fact that Madison proposed this amendment indicated

that the constitution makers were sensitive to the nuance of language.
How one stated a right mattered. Yet there were limits to how precise
such statements could be. Declarations of rights, like the paradigmatic
one the Virginians adopted, could only espouse principles. They could
not lay down doctrines or determine how such principles were to be
implemented. That was the task that awaited the Committee on Reli-
gion in the fall of 1776. Jefferson threw himself into this task with a
fervor that, if not itself religious, at least expressed a powerful politi-
cal and moral commitment. At a moment when the American cause
seemed to be verging toward military defeat, his most urgent priority
was to pursue the agenda of the radical Enlightenment by disestablish-
ing the Church of England and grounding the free exercise of religion
on the broadest foundation possible.
At first glance, Jefferson’s commitment might therefore appear to
have been a distraction from more pressing concerns. But since 1769
the treatment of dissenting Presbyterians and Baptists had become an
increasingly contentious issue in Virginia politics. In protest against
the prosecution of their ministers for unlicensed preaching, the dis-
senting sects repeatedly petitioned the Virginia assembly to extend
to them the same principles that underlay the parliamentary Act of
Toleration of 1689. It was the confinement in 1774 of “5 or 6 well
meaning men in close Goal [jail]” for unlicensed preaching that led
the young Madison, liberally educated at the College of New Jersey
(now Princeton University), to rail against the embarrassing religious
prejudices of his Virginia neighbors. “I have squabbled and scolded,
abused and ridiculed so long about it,” he wrote his college friend,
Billy Bradford, but to so little “purpose that I am without common
patience.”4 Bradford was lucky enough to live in Pennsylvania, a land
of true religious liberty; Madison was marooned in benighted Vir-
ginia, where “[t]hat liberal catholic and equitable way of thinking as
to the rights of Conscience, which is one of the characteristics of a free
people and so strongly marks the People of your province is but little
known among the Zealous adherents to our Hierarchy.”5 Even in the
spring of 1774, Madison doubted that the dissenters’ petitions had
much chance for success.
By the time the Committee on Religion began its work in the fall of
1776, however, the balance of political forces within the newly inde-
pendent commonwealth had begun to shift. For one thing, the course
of the Revolution itself gave Virginia leaders political incentives to
take the dissenters’ concerns seriously. For another, taking inspiration
and encouragement from the Declaration of Rights, the dissenters
40 Jack N. Rakove
themselves began flooding the legislatures with petitions for religious

liberty and disestablishment. At the minimum, these petitions called
for lifting the various restrictions that had previously been imposed
upon them. But the petitions also presumed that the state could
indeed “go on” to adopt a more radical position. Some attacked the
basic idea of establishment itself, in terms that contemplated placing
Christianity on the same plane as other faiths. Take the petition from
Hanover County, which Jefferson’s great modern editor, Julian Boyd,
singled out for special mention in his introductory note to the 1776
reading notes on religion. All the arguments that operated “in favour
of establishing the Christian religion,” these humble Hanoverians
declared, could also “be pleaded with equal propriety for establishing
the Tenets of Mahomed by those who believe the Alcoran.’”6 But so
bald a statement of religious equality had to contend with the basic
fact that Virginia had been an Anglican province for a century and
a half, and that its dominant leaders came from the same political
class that routinely sat on their parish vestry. As a result, the adoption
of the Religion Clause of the Declaration of Rights, far from being
the end of the matter, marked only the beginning of a struggle that
continued, off and on, for another decade, when the defeat of the
General Assessment bill of 1784–85 paved the way for the enactment
of the Statute for Religious Freedom that Jefferson had originally
drafted in 1779.
The great issue in this ongoing struggle was not over the extent or
nature of freedom of conscience. It was, rather, about establishment,
or more specifically, over the extent to which support of either the
previously established Anglican church or all identifiable denomina-
tions (or faiths) could remain a legitimate end of public policy. Or
to put the point more directly, it was easy for Virginians to agree
that individuals had a fundamental right to believe what they wished
in matters of faith, to convey those beliefs to others, and to be free
from the legal obligation to contribute to the support of other insti-
tutional churches. But that concession of an individual right did not
unilaterally resolve broader questions about the extent to which pub-
lic support for religion might still be conducive to the collective pub-
lic good. There is, after all, no necessary inconsistency between the
broad recognition and protection of individual rights of conscience
and the pursuit of various forms of religious establishment. As long as
religious dissenters are free to believe and practice as they wish, and
to do so as a matter of inherent right (and not mere toleration), a
state (whether the modern nation-state or a mere member-state of the
American republic) can still have reasonable grounds for bestowing
legal benefits on religious institutions, especially if it does so without

conveying particular privileges to favored denominations.
This disjunction between the easy acceptance of freedom of con-
science and tougher questions about establishment has a modern ana-
logue in the constitutional jurisprudence of the Religion Clause of
the First Amendment. Its language is far terser than the comparable
Virginia article that Madison helped to craft in 1776. All it says is that
“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.” Although each half of the
Religion Clause has predictably evolved its own line of jurisprudence
and thus of critical commentary, modern scholars generally see the
Establishment Clause as the greater source of constitutional perplexity
and vexation. This is not to deny that the Free Exercise Clause has also
produced noteworthy decisions and its own body of doctrinal uncer-
tainty. There is an important line of cases in this area, beginning with
the Supreme Court’s explicit and pioneering appeal to the authority
of Jefferson and Madison in Reynolds v. U.S. (1879), the Mormon
polygamy case that laid down the essential distinction between belief
and behavior while equating the “free exercise” of religion with the
former.7 Equally noteworthy were the Flag Salute cases of the early
1940s, in which the Court, after unwisely overturning lower-court
decisions exempting school-age Jehovah’s Witnesses from a compul-
sory patriotic ritual, had to back down when its decision led to a virtual
open season in persecutions of an unpopular religious minority.8 But
perhaps by definition, Free Exercise Clause decisions typically involve
minorities at the margins of society, seeking to ensure their ability
to pursue a practice that is essentially private, even if it runs afoul
of some public regulation. Its heroes are lone actors like the Gobitis
children, Lilian and William, the young Jehovah’s Witnesses who first
challenged the right of a school district to compel their performance
of the flag salute. Establishment Clause cases, by contrast, are typically
more public. They are more likely to involve the expenditure of tax
dollars that we have all contributed to the treasury or the conspicuous
expression of religious sentiments in public places where we all pass.
Free Exercise cases are often about the right of cranky individuals to
be left alone; Establishment cases ineluctably raise issues about the
entanglement of public funds and private sensibilities.9
This disparity between the two branches of the Religion Clause
implicates a broader aspect of the Revolutionary generation’s engage-
ment with issues of religious freedom. Broad acceptance of the indi-
vidual’s inherent right to freedom of conscience was by far the easier
part of the “struggle” to attain full religious liberty—so easy, in fact,
42 Jack N. Rakove
as to require hardly any struggle at all. For all intents and purposes,
Americans already treated the right to believe as a natural right—truly
natural, indeed, because belief itself was (and is) best defined as an
inner state of mind, a balancing of conviction and doubt, that each
of us has to work out to our own satisfaction. The real struggle after
1776 lay in the realm of establishment; that is, in the question of
whether public support for religion should continue at all, and if so, on
what basis: by maintaining traditional support for a favored church, or
providing support for all identifiable denominations and sects. In the
much-studied case of Virginia, this disjunction between the easy case
of freedom of conscience and the harder case of establishment can be
readily illustrated by the contrast between the quick and seemingly
uncontroversial approval of Madison’s amendment in May 1776 and
the decade-long struggle over general assessment bills that followed.
The depth and duration of the ongoing struggle over establish-
ment suggest that the prior, easier triumph of freedom of conscience
had only a limited impact on the more difficult aspects of redrawing
the line (or raising the wall) between church and state. In the stan-
dard language of historical causation, acceptance of conscience as a
natural or fundamental right may have been one necessary cause of
the progress of disestablishment, but it was hardly sufficient. Indeed,
as a recent surge in historical writings has indicated, the idea that
Americans of the Revolutionary War and postwar eras were actively
contemplating a “high-wall” separation of church and state carries
less scholarly certainty today than it enjoyed a generation or so ago.
Jefferson’s purpose in using this metaphor in his famous 1802 letter
to the Baptists of Danbury, Connecticut, has become an independent
source of controversy. Not unlike the vexed question of his paternity
of the children of his slave, Sally Hemings, the surviving physical evi-
dence of this letter has been subjected to the best analysis modern
technology can provide.10
It is not my purpose in this chapter to review the evidence for or
against broad readings of the Danbury letter as a smoking pistol of a
text capable of definitively establishing just how one should read the
Sage of Monticello’s famous metaphor. In my view, the evidence of
Jefferson’s beliefs, concerns, and attitudes appears more than sufficient
to demonstrate the depth of his conviction about the general princi-
ples of separation and disestablishment, as well as his consistency over
time. This is neither a novel opinion nor a bold one.11 What does bear
closer examination, however, is the nexus within which ideas about
both the free exercise of religion and its disestablishment intersected
with the emergence of distinctively American constitutional ideas

and understandings. The right to conscience and the free exercise of
religion may seem to resemble other rights, and the “Congress shall
make no law” formula of the First Amendment covers other forms of
expression than religious belief. On closer examination, however, the
Religion Clause and the values it represents diverge in important ways
from other rights, and this divergence has important implications for
the very concept of limited government itself. In my view, the freedom
of conscience should be seen as the paradigmatic individual right, the
one that places the greatest value on our subjective capacity to make
fundamental choices, free from political constraint. It is in fact a more
powerful source of the concept of a fundamental right to privacy than
the companion rights (such as security against arbitrary search and
seizure) that are more frequently invoked as sources and expressions
of that value. And the idea that government can entirely abjure its
authority to regulate religion, as such, marks the point where the gen-
eral concept that all the powers of government ultimately derive from
a sovereign people was converted into the recognition that there were
entire realms of human activity that government could no longer be
allowed to regulate.
The starting point for recovering this nexus of constitutional val-
ues lies in Locke’s distinction between the “Civil interests I call life,
liberty, health, and indolency of body; and the possession of outward
things, such as money, lands, houses, furniture, and the like,” on the
one hand, and the right to maintain one’s own religious beliefs, on the
other.12 The former were all alienable: not, of course, in the absolute
sense of being wholly transferred to an arbitrary, tyrannical govern-
ment against which individuals could have no recourse, but in the
more limited sense of being entrusted to a government that could
legitimately regulate their possession and enjoyment. But for Locke,
as for his colonial disciples, the right to believe could never be alien-
ated, even if one somehow could wish or attempt to do so. Jefferson’s
summary of Locke’s position in his reading notes captures the essen-
tials of the argument but also catches the key distinction:
the magistrate’s jurisdiction extends only to civil rights and from these
considerations:
the magistrate has no power but what the people gave him.
the people have not given him the care of souls because they could
not. they could not because no man has right to abandon the care of
his salvation to another.
44 Jack N. Rakove
no man has power to let another prescribe his faith. faith is not
faith without believing. no man can conform his faith to the dictates
of another.13
Strictly speaking, the right to believe is inherently unalienable

because its exercise is involuntary or (we could say) natural. Whether
one might freely wish to or not, the right to believe can never be
transferred to another because belief is ineluctably an interior state of
mind. Jefferson summarized Locke thus: “the life & essence of reli-
gion consists in the internal persuasion or belief of the mind.” Locke’s
fuller definition is worth citing: “true and saving religion consists in
the inward persuasion of the mind, without which nothing can be
acceptable to God. And such is the nature of the understanding,”
Locke added, “that it cannot be compelled to the belief of anything
by outward force.”14 No amount of punishment imposed in the name
of maintaining orthodoxy can alter this philosophical and psychologi-
cal truth.
Three observations about Locke’s position are in order. First,
Locke’s formulation comes close to inverting the basic principle of
religious polity that is conventionally regarded as the great legacy
of the Peace of Westphalia (1648) and its effort to restore peace to
Europe after the Thirty Years War: cuius regio, eius religio (whose rule,
his religion). As a matter of prudent statecraft, that principle offered
a promising formula for preventing religious differences within indi-
vidual countries from escalating into overt conflicts among the emerg-
ing sovereign nations of the post-Westphalian world. But it offered
little protection for the religious dissenters whose plight increasingly
concerned Locke during the 1680s, first in England and then during
his exile in Holland, which coincided with the revocation of the Edict
of Nantes in 1685 and the surge of Huguenot exiles from France.
Second, Locke’s definition of religion in terms of inner belief and
conviction seems inherently and profoundly Protestant. Even if he
is right about the nature of belief and the futility of coercion, one
can imagine other definitions of religion in which the performance of
good works, observance of liturgy, and most important, obedience to
a communal religious law (say, halacha or sharia) prove equally essen-
tial, if not more so. Third, and consistent with the previous point,
Locke’s position did not represent the genuinely radical philosophical
alternative espoused by Spinoza and his intellectual followers. Locke’s
theory of toleration “revolves primarily around freedom of worship
and theological discussion,” Jonathan Israel observes, “placing little
emphasis on freedom of thought, speech, and persuasion beyond what
relates to freedom of conscience which, in principle might be Jewish

or Mohammedan as well as Christian.”15 And, as previously noted,
Locke’s position did not require tolerating Catholics and atheists, two
suspect categories of persons whose rights the commonwealth had
good cause to restrict.
When Jefferson and Madison proposed to “go on” beyond Locke
a century later, they were implicitly moving toward a Spinozist posi-
tion, yet still operating within the essentially Protestant assumptions
about religiosity that they shared with Locke.16 Even those enlight-
ened Americans who were moving toward deism, or who had grown
skeptical about the divinity of Jesus or the truth of revelation, could
not avoid the pervasive Protestant religiosity of late-colonial society—
a society that had become, in Richard Hofstadter’s apt phrase, “a con-
centrated repository of the Protestant ethic.”17 However we assess the
content of Jefferson’s and Madison’s individual theologies (and the
former’s is far more accessible than the latter’s), we have to recognize
that they operated within much the same conceptual framework as
had Locke.18
Madison sounded distinctly Lockean notes in his 1785 Memorial
and Remonstrance against Religious Assessments, written during the
culminating and decisive campaign against the general assessment bill
that would provide public support for all Christian ministers. Here,
again, religion is defined in terms of “the conviction and conscience
of every man.” The right to exercise these dual aspects of belief is
declared to be “unalienable, because the opinions of men, depending
only on the evidence contemplated by their own minds cannot follow
the dictates of other men.” But Madison then offers a further explana-
tion of the “unalienable” nature of this right that seems to go beyond
the Lockean formulation, and in terms that present a fresh puzzle of
its own. The freedom of conscience that “is a right towards men,”
Madison adds, has a second attribute; it is also
a duty towards the Creator. It is the duty of every man to render to

the Creator such homage and such only as he believes to be acceptable
to him This duty is precedent, both in order of time and in degree
of obligation, to the claims of Civil Society. Before any man can be
considered as a member of Civil Society, he must be considered as a
subject of the Governour of the Universe; And if a member of Civil
Society, who enters into any subordinate Association, must always do
it with a reservation of his duty to the General Authority; much more
must every man who becomes a member of any particular Civil Soci-
ety, do it with a saving of his allegiance to the Universal Sovereign.
46 Jack N. Rakove
We maintain therefore that in matters of Religion, no mans right is

abridged by the institution of Civil Society and that Religion is wholly
exempt from its cognizance.19
Madison’s conception of religious duty as being “precedent, both

in order of time and in degree of obligation, to the claims of Civil
Society” admittedly poses some difficulties, especially if it is read to
imply that obedience to religious laws trumps the legal claims of “civil
society.” That clearly cannot have been Madison’s intended mean-
ing. But the difficulty disappears if the duty owed is treated not as a
matter of choosing between God and Caesar, but (again) as a ques-
tion of what one chooses to believe about the essentials of faith, the
nature of conversion, the number and efficacy of the sacraments, the
balance between faith and works in the quest for salvation, the sac-
erdotal authority of priests and ministers, and all the other questions
that Christians had been disputing for centuries and that Protestants
in particular would continue to bicker over as long as they allowed an
empowered laity to read Scripture for themselves. For Madison, these
were all healthy questions precisely because they were incapable of
resolution. Allowing well-meaning Protestants to continue to bicker
over them, he was coming to realize, was the best way to ensure the
multiplicity of private religious preferences that would provide the
best security for collective religious liberty.
Madison did not rely on this argument alone to sustain his claim for
a total exemption of religion from the cognizance of civil society. The
Memorial and Remonstrance was conceived as a political petition, not
a philosophical statement, and its fifteen points sometimes embody a
“belt and suspenders” approach to building a political coalition. Early
on, for example, Madison appealed to the memory and spirit of 1776
to remind his readers that “it is proper to take alarm at the first experi-
ment on our liberties.” That attitude of inherent suspicion, after all,
was “one of the noblest characteristics of our late Revolution.” Still, it
seems significant that a document designed to attack an explicit issue
of establishment—the use of public funds to support all Christian
ministers on a nonpreferential basis—begins with a restatement of the
basic Lockean position on freedom of conscience. Madison recurred
to this motif in later points, repeatedly treating religion as a matter of
voluntary choice and affiliation, undertaken by individuals who are
perfectly competent to ponder and resolve questions of faith and who
need no assistance from public authorities who are perfectly incom-
petent to add anything to the individual’s decision. Thus the fifth
point of the Memorial dismisses the notion that “the Civil Magistrate
is a competent Judge of Religious Truth” as “an arrogant pretension

falsified by the contradictory opinions of Rulers in all ages.” The sixth
point similarly argues that far from depending on “the powers of this
world” for the dissemination of its message, true Christianity “both
existed and flourished, not only without the support of human laws,
but in spite of every opposition from them.”20
Jefferson’s Statute for Religious Freedom, finally enacted in the
wake of the defeat of the general assessment, adopts a similar argu-
ment. It, too, begins with a rolling affirmation of the sovereignty of
individual belief: “Whereas almighty God hath created the mind free;
that all attempts to influence it by temporal punishments or burthens,
or by civil incapacitations, tend only to beget habits of hypocrisy and
meanness.”21 For Madison as for Jefferson, then, the easy acceptance
of freedom of conscience was not some mere antecedent condition
from which one might or might not proceed to attack the more dif-
ficult matter of establishment. The attack on establishment flowed
logically, perhaps even necessarily, from the commitment to freedom
of conscience. There might be other good reasons of state to preserve
some form of establishment, including legitimate doubts as to whether,
absent some publicly supported encouragement or obligation, many
citizens would actually take the initiative to exercise their religious
conscience at all. But the greater the confidence one expressed in the
efficacy of individual conscience, the more problematic any notion of
establishment became.
Embedded in this same conception of conscience as the sole prop-
erty of individuals was a more profound argument about the nature
of rights and the individuals who bear them. Today we casually and
uncritically assume that the revolutionaries and constitutionalists of
the 1770s and 1780s were, like us, strongly committed to the defense
of individual rights and liberties. They had an ornery libertarian
streak, with a bit of Daniel Boone lurking in each of their liberty-lov-
ing breasts. This conception seriously mistakes the way in which the
American colonists thought about the basic problems of identifying
and protecting rights prior to the Revolution. Stated in constitutional
terms, the problem of rights was less about protecting individuals than
about protecting the people as a whole. The greatest source of dan-
ger to rights was believed to come from the unchecked and concen-
trated authority of the crown, and the best protections for rights lay
in maintaining the authority of representative legislatures and juries
to prevent executive officials from acting unilaterally and arbitrarily.
In this sense, by way of illustration, the right of a citizen to serve on a
jury was more important than the right to be tried by one, and juries
48 Jack N. Rakove
were seen not as objective fact finders but as independent repositories

of legal knowledge and constitutional responsibility. So, too, repre-
sentative assemblies were not regarded, in the language of modern
political science, as preference-aggregating institutions where an array
of interests “wheeled and dealed” in the stuff of distributive justice.
They existed first and foremost to prevent the crown from making
law (and especially from imposing taxes) without the duly registered
consent of the people’s representatives.22
Of course, liberty-wielding individuals would be the beneficiaries
of any system of constitutional restraints that prevented the most dan-
gerous branch of government from acting arbitrarily. But liberty was a
catchall word that was used so freely and ubiquitously and even flab-
bily in Anglo-American political discourse as to be devoid of precise
meaning. As the legal historian John Phillip Reid has noted, liberty
was best defined in opposition to its evil twin “licentiousness,” one of
those eighteenth-century words that has largely lost its meaning today,
whereas back then it conveyed a strong sense of the moral judgment
that any community could legitimately exercise in order to distinguish
acceptable from impermissible norms of behavior.23 And of course
the rights that the colonists were primarily concerned with protecting
during their decade-long constitutional quarrel with Britain were col-
lective rights of self-government, as pursued through the autonomy
of locally accountable institutions. Individuals, again, would benefit
from the preservation of their authority. But it was the collective right
of self-government that was most directly endangered.
In the spectrum of rights and liberties to be protected, the one
that stands out as most individualistic or, we might say, liberal (in the
traditional meaning of the term) and subjective, then, is freedom of
conscience: the right to believe what one chooses to believe, or what
one finds most persuasive, about the nature of religious truth, the
path to salvation, the authority of revelation, and so on. It is the one
right that places the greatest premium, the greatest emphasis, on the
individual’s capacity for judgment, and assumes that each individual
is morally and intellectually competent to decide the most difficult
questions of faith. Perhaps more important, freedom of conscience is
the one right that most strongly denies or negates the capacity of the
state to oversee the activity in question. Lacking any superior capacity
or means to ascertain religious truth, public authority can add noth-
ing of value or substance to an individual’s own judgment; it is wholly
superfluous. Freedom of conscience thus presupposes the existence
of a “zone of privacy” in the interior life of each of us where the state
cannot intrude.
In that sense, it also differs fundamentally and powerfully from all

the other rights to which we accord constitutional protection. Even
when those rights rest upon some conception of individual autonomy
and privacy, they typically presuppose that the state has an authority
and duty to act, but that in doing so it must conform to standards
that are constitutionally authorized and legally defined. The right to
be secure against unreasonable search and seizure does not protect
our lodgings or even our body cavities from the prying eyes and ears
and the probing fingers of the state. It merely says that the state has to
have probable cause, reasonable suspicion, or some compelling inter-
est of public safety, subject to judicial scrutiny and legislative oversight,
before it applies its instruments of surveillance, and that in doing so
it must meet nonarbitrary or noncapricious standards of review. The
concept of freedom of conscience says, by contrast, that the state
has no authority to act at all. Freedom of conscience requires abso-
lute exemption from public scrutiny and regulation; other rights call
instead for the application of fair standards and regular procedures.
The recognition of this fundamental and radical difference between
this one right and all the others meriting or clamoring for constitutional
recognition may help to clarify that strange passage in the Memorial
and Remonstrance where Madison imagines the duty individuals owe
to the Creator as being somehow prior to other obligations. Treat-
ing freedom of conscience as a genuinely natural right placed it on
a par with the familiar trinity of life, liberty, and property that Locke
and other rights-minded thinkers had invoked. But the conventional
story about those rights said that their unrestrained but precarious
exercise was what we surrendered in exchange for the greater security
of life in civil society under settled laws. Those absolute natural rights,
though fundamental to society and government, were transformed
into their legally regulated counterparts. As such, their actual exercise
was embedded in the dense framework of law, in its multiple forms,
and thus in the practices of juries and legislative assemblies, the dual
institutions of representative government that Anglo-American con-
stitutional theory made responsible for the protection of rights. And
under the prevailing theories of legislative supremacy that Americans
inherited from the Glorious Revolution, there was no realm of behav-
ior that the authority of law could not reach.
To go beyond toleration and accept the free exercise of religion as
a natural right, however, was to identify one essential area of behavior
where the legislative power would no longer operate. The acceptance
of individual sovereignty over religious convictions necessarily entailed
a derogation from the plenary authority of the legislature. Legislative
50 Jack N. Rakove
supremacy no longer meant legislative omnipotence. The enjoyment

of life, liberty, and property still depended on the framework of legal
regulation; the free exercise of religion presumed that law would be
silent in the face of conscience. A wall had been erected to fence off
this one vital area of the human personality from public intrusion,
supervision, and punishment.
But how about protecting it from public support? Why would
one need a wall of separation to prevent government from acting
neutrally or beneficently to encourage religion—not by coercion,
not by punishment, not by monitoring, but simply by making avail-
able more of a good thing? That was the entirely reasonable line of
thought that lay behind the various proposals for a general assessment
in support of all denominations that continued to be made in Virginia
after 1776, and that ended only when Madison’s legislative success in
turning back the last such proposal led to the approval of the Statute
for Religious Freedom.
A long answer to this question would require explaining the poli-
tics of coalition building among the various denominations of late
eighteenth-century Virginia. An even longer explanation would
stress the competitive impetus that disestablishment gave to the same
denominations to develop their own strategies for converting believ-
ers and mobilizing supporters in the post-Revolutionary spiritual
marketplace.24 A shorter answer can simply focus on the link between
the logic of conscience and the rationale for disestablishment. Once
one accepts the necessary sufficiency of the individual conscience to
the pursuit of religious truth and conviction, and the essentially vol-
untary nature of belief itself, arguments for public support of reli-
gion appear superfluous. Against the image of the lone truth seeker
who has no choice but to look inward for his or her convictions,
the idea of creating lines of mutual dependence between church and
state becomes subject to the familiar criticisms of entangling alliances
and mutual corruption that Jefferson adduced in his Notes on the
State of Virginia and in the stirring preamble to the Statute for Reli-
gious Freedom. Establishment is unnecessary becomes conscience is
inalienably sufficient.
Far from being a benign prologue to the more difficult struggle
over disestablishment, the easy acceptance of freedom of conscience is
better understood as both a necessary condition and even a compel-
ling argument in itself for the separation of church and state. As this
chapter also suggests, the religion question has important implications
for the constitutional thought of the Revolutionary era more gener-
ally, especially for the idea that rights are primarily the property of
autonomous individuals deserving protection from both the coercive

authority of the state and the preferences of popular majorities. At
the same time, we must recognize that when Jefferson and Madison
proposed to “go on” beyond Locke, they were still operating within
an intellectual tradition that was fundamentally Protestant in charac-
ter—that is, one that equated religious identity and practice primarily
with an inner state of belief, not an outward performance of duties.
Those of us who may be inclined (as I am) to think there are universal
lessons to be derived from their ideas still have to wrestle with that
central fact.
Notes
1. Jefferson to Thomas Nelson, in Julian Boyd et al., eds., The Papers of
Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950),
I:292.
2. Ibid., 548; John Locke, Two Treatises of Government and A Letter Con-
cerning Toleration, ed. Ian Shapiro (New Haven, CT: Yale University
Press, 2003), 245.
3. For the relevant drafts, see William T. Hutchinson et al., eds., The
Papers of James Madison (Chicago: University of Chicago Press, 1962),
I:172–75.
4. Madison to William Bradford, January 24, 1774, ibid., 106.
5. Madison to Bradford, April 1, 1774, ibid., 112.
6. Boyd, et al., Papers of Jefferson, I:526.
7. Reynolds v. U.S., 98 U.S. 145 (1879); Sarah Barringer Gordon, The Mor-
mon Question: Polygamy and Constitutional Conflict in Nineteenth-Cen-
tury America (Chapel Hill: University of North Carolina Press, 2002).
8. Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution
and the Dawn of the Rights Revolution (Lawrence: University Press of
Kansas, 2000).
9. This paragraph obviously oversimplifies in an impressionistic way a far
more complex set of issues. For a good general introduction to the
interpretation of the Religion Clause, see John Witte, Jr., Religion and
the American Experiment: Essential Rights and Liberties (Boulder, CO:
Westview, 2000).
10. See James Hutson, “Thomas Jefferson’s Letter to the Danbury Bap-
tists: A Controversy Rejoined,” William and Mary Quarterly, 3d
ser., 56 (1999), 775–90, the introductory essay in a Forum joined by
another half dozen scholars. Hutson’s main substantive point is that
neither as a Virginia official nor as an American president did Jeffer-
son regard the physical use of public buildings for religious services as a
violation of either his own Statute for Religious Freedom or the Estab-
lishment Clause, as long as all denominations enjoyed equal access and
52 Jack N. Rakove
government was not responsible for paying clerical salaries or endorsing

doctrinal creeds.
11. Thus see the contribution to the Danbury letter Forum of Robert O’Neil,
“The ‘Wall of Separation’ and Thomas Jefferson’s Views on Religious
Liberty,” ibid., 791–94.
12. Locke, Letter Concerning Toleration, 126.
13. Boyd, et al., Papers of Jefferson, I:545. For ease of reading, I have
expanded Jefferson’s contractions in his notes into full words.
14. Locke, Letter Concerning Toleration, 127. For the comprehensive analy-
sis of Locke’s changing ideas of toleration, see John Marshall, John Locke,
Toleration and Early Enlightenment Culture (New York: Cambridge
University Press, 2006).
15. Jonathan I. Israel, The Radical Enlightenment: Philosophy and the Making
of Modernity, 1650–1750 (Oxford: Oxford University Press, 2001), 265.
16. I note in passing that there seems to be little evidence that American
thinkers read or had any serious knowledge of Spinoza—or that at least
is the impression I retain after consulting such authorities as Bernard
Bailyn, Noah Feldman, Robert Middlekauff, and James Turner on this
question. That observation seems both unsurprising, given Spinoza’s
background and status, yet also noteworthy as a comment upon the pro-
vincialism of eighteenth-century American thinking.
17. Richard Hofstadter, America at 1750: A Social Portrait (New York:
Alfred Knopf, 1971), 293.
18. Compare Thomas E. Buckley, “The Political Theology of Thomas Jeffer-
son,” in Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia
Statute for Religious Freedom: Its Evolution and Consequences in Ameri-
can History (New York: Cambridge University Press, 1988), 75–107,
with the immediately following essay by Lance Banning, “James Madi-
son, the Statute for Religious Freedom, and the Crisis of Republican
Convictions,” ibid., 109–38. As a fellow Madison biographer, I agree
with Banning that “Madison’s own faith is something of a puzzle.”
19. Memorial and Remonstrance against Religious Assessments, June 1785,
in Jack N. Rakove, ed., James Madison: Writings (New York: Library of
America, 1999), 30.
20. Ibid., 31-32.
21. Note Jefferson’s rhetorical use of the biblically resonant “hath” and
“beget.”
22. I draw here on the much more extended argument about constitutional
rights made in Jack N. Rakove, Original Meanings: Politics and Ideas
in the Making of the Constitution (New York: Alfred Knopf, 1996),
288–338.
23. John Phillip Reid, The Concept of Liberty in the Age of the American
Revolution (Chicago: University of Chicago Press, 1988), 11, 32–38.
24. On this point see, especially, Nathan Hatch, The Democratization of
American Christianity (New Haven, CT: Yale University Press, 1989).
Chapter 3
“S eparation” Abroad
How L o ng the Jeff erso ni a n Sha d ow?
Robert M. O’Neil
When the United States Supreme Court revisited the question of

whether a U.S. citizen may challenge in court the constitutionality
of “faith-based initiatives,” the Jeffersonian legacy was omnipres-
ent. Indeed, the central issue of that case vividly illustrated the sin-
gular approach of the United States Constitution to the relationship
between religion and government.1 American taxpayers have not been
allowed to challenge in federal court the use of their tax payments,
with one notable exception—when that challenge arises under the
Establishment Clause of the First Amendment and claims a breach of
the principles of separation.2 Addressing almost any issue about reli-
gion and government under the American Bill of Rights is inherently
more difficult and more complex than a comparable analysis in almost
any other legal system, and for one simple reason—the duality of reli-
gious freedom guarantees contained in the American First Amend-
ment. The focus of this chapter is that dual system of safeguards for
religious liberty—its origin and place in the Jeffersonian cosmos, its
domestic interpretation, and its international parallels or emulations.
54 Robert M. O’Neil
Je f f er s o n’s D ual G uar antees of Reli g i ous

Freedom: A Domestic Perspective
What emerges most clearly from the formative period of the U.S.
constitutional guarantees for religious freedom is that Thomas Jef-
ferson and James Madison deemed seriously inadequate any formal
safeguards that would ensure only “free exercise”—that is, embrac-
ing only the rights of religious belief, worship, and expression.
Although the impetus for embedding religious liberty in the Bill of
Rights had unmistakably free-exercise roots—even more for Madison
than for Jefferson—their shared concern about excessive entangle-
ment of church and state played an indispensable role in the forma-
tive process. Indeed, the major documents to which we turn even
today in seeking the Framers’ guidance—Jefferson’s 1786 Statute
of Virginia for Religious Freedom3 and Madison’s 1785 Memorial
and Remonstrance against Religious Assessments4—focused chiefly
on the hazards of undue proximity between (and interdependence
of) government and religion.
The catalyst for both documents was the protracted controversy
over the established church in Virginia and particularly Patrick Henry’s
proposal to replace the unitary Anglican system with a multiple estab-
lishment. To that suggestion Jefferson and Madison both responded
skeptically, insisting that only complete disestablishment (which the
General Assembly eventually decreed) would adequately protect reli-
gious liberty in the Old Dominion. For Jefferson’s Virginia statute,
the evil to be addressed was unmistakable: “That to compel a man to
furnish contributions of money for the propagation of opinions which
he disbelieves and abhors, is sinful and tyrannical; that even the forc-
ing him to support this or that teacher of his own religious persuasion
is depriving him of the comfortable liberty of giving his contributions
to the particular pastor whose morals he would make his pattern.” In
short, guaranteeing a citizen’s right to espouse religious values and
to worship (or not worship) as he chose would only partially protect
religious liberty. Only ending the established church would fully safe-
guard this vital human liberty.
The Framers’ concerns, moreover, went far beyond the individual
worshipper or preacher. In their view, both government and religion
stood to suffer from too close and comfortable a degree of proximity,
albeit in different ways. In Madison’s words, the history of established
churches demonstrated that such relationships, “instead of maintain-
ing the purity and efficacy of Religion, have had a contrary opera-
tion.” Indeed, quite practical concerns were closely related, though
“Separation” Abroad 55
seldom articulated—notably a growing perception that clergy who

were state employees and could thus count on being paid regularly by
government, regardless of their piety or the quality of their pastoral
eloquence and counseling, tended to become lazy and indifferent to
their vestries and congregations in matters both spiritual and temporal.
The concern was not only for the “church” side of the equation, but
quite as much for the “state”; religious establishment had not proved
to be in any respect “necessary for the support of Civil Government.”
Indeed, the lesson of history was that “it will destroy that modera-
tion and harmony which the forbearance of our laws to intermeddle
with Religion has produced among its several sects.” The latter refer-
ence vividly reminds one of the constant interaction and inescapable
interdependence in the Jeffersonian-Madisonian view of free exercise
and nonestablishment. Protecting religious worship and belief was of
course essential, but even the colonial experience proved that it was
not enough. The two spheres must be kept a safe distance apart by
what Jefferson would later call, in the most memorable sound-bite of
the early nineteenth century, a “wall of separation.”5
That the First Amendment to the new Constitution should thus
contain two separate clauses on religion—the one protecting “free
exercise” and the other barring any “law respecting an establishment
of religion”—is therefore hardly surprising. Such a dual guarantee has
posed no end of interpretive issues that we cannot probe here, but
merely note—whether, for example, “religion” must mean the same
thing in both clauses, or whether there could be a practice that the
Free Exercise Clause protects even though the Establishment Clause
would not preclude government support of that practice. Nor do we
know why the Framers used “abridging” as the proscribed govern-
mental act when protecting free speech and press, but turned to “pro-
hibiting” when it came to religious exercise. Much less do we have any
insight into the intended meaning of the somewhat tortured phrase
“law respecting an establishment of religion”; even late drafts of the
Bill of Rights used more familiar terms such as “no religion shall be
established by law.”6 Strangely, the version that eventually prevailed
did contain ambiguities and posed quandaries—whether, for example,
the Framers meant only to protect from federal interference those state
establishments that persisted through the first third of the nineteenth
century. Simpler language would have avoided such ambiguities.
Finally, there remains to this day an understandable skepticism
over the degree to which the religious freedom language of the First
Amendment, as ratified by the states in 1791, was actually designed
to incorporate the thinking of Jefferson and Madison. Supreme Court
majorities have never hesitated to credit those two eminent Virgin-

ians with inspiring the constitutional safeguards of religious freedom.
As Justice Hugo Black reaffirmed in 1947, “The provisions of the
First Amendment, in the drafting and adoption of which Madison
and Jefferson played such leading roles, had the same objective and
were intended to provide the same protection against governmental
intrusion on religious liberty as the Virginia statute [of 1786.]”7 Yet
there have been a few judicial demurrers along the way; thoughtful
opinions by the late Chief Justice William Rehnquist in 19858 and by
Justice Clarence Thomas a decade later9 argued that their colleagues
had much too casually inferred an identity of views between the Jef-
fersonian-Madisonian impetus and the relevant First Amendment
provisions. The conventional wisdom, however, overwhelmingly
favors such an assimilation, although interpretation has not always
conformed quite as comfortably.
In actual practice, United States courts have always been mildly
uncomfortable, at the very least, with the dual guarantees of religious
freedom. Although Free Exercise issues reached the Supreme Court
as early as 1878, it was not until 1947—more than a century and a
half after its adoption—that the Establishment Clause received its first
definitive interpretation at that level.10 In that initial exposition, the
justices were as closely divided as nine judges could be—and so the
high Court has continued to split on most of the major issues that have
arisen under the religious freedom clauses. Mercifully few of the high
court’s cases have compelled a reconciliation of the Free Exercise and
Establishment clauses; most constitutional challenges to government
action that affects religion have either arisen unambiguously under
one clause or the other, requiring no recourse to the other clause, or
they have invoked both clauses in parallel by challenging practices that
are claimed to abridge Free Exercise while breaching the mandated
separation of government and religion.
Yet there have been a few perplexing cases in which the two clauses
might bear quite differently on a challenged practice, and it is in just
those cases that serious analytical problems could not be avoided. In
1963, for example, the Supreme Court’s major religious freedom rul-
ing invalidated public school prayer and Bible reading on Establish-
ment Clause grounds, even though challenges in the lower courts
have also invoked Free Exercise, and the high court could have relied
concurrently on both clauses.11 During that same term, however, the
justices agreed to review state policies that denied unemployment
compensation to devout workers who lost or left their jobs because
of conflict between work schedules and the dictates of their faith.
The majority ruled that imposing such a disqualification violates the

worker’s religious freedom, at least absent a showing of compelling
governmental interest. Justice William Brennan, speaking for himself
and six others, also rejected the state’s claim that to create such an
exemption would unduly favor the religiously unemployable person
(as against persons who were unavailable for myriad secular reasons)
and would therefore violate the Establishment Clause. Brennan wrote
that “the extension of unemployment benefits [in such a case] . . .
reflects nothing more than the governmental obligation of neutrality
in the face of religious differences.”12
Justice Potter Stewart, while concurring in the disposition of the
case, wrote separately to convey his profound disagreement with the
Brennan opinion on this latter point: “With all respect,” he declared
in a separate opinion, “I think it is the Court’s duty to face up to the
dilemma posed by the conflict between the Free Exercise Clause of
the Constitution and the Establishment Clause as interpreted by this
Court. It is a duty, I submit, which we owe to the people, the States,
and the Nation, and a duty which we owe to ourselves.”13 Justice
John Marshall Harlan, who dissented from the judgment, was no less
troubled by the ease with which the majority had reconciled the con-
tending constitutional claims. Though he conceded that creating such
a dispensation for the unemployed worshipper might be “a permis-
sible accommodation for the State, if it chose [to create it],” it was
quite a different matter to mandate such treatment as the majority had
done. Such a mandate, Justice Harlan insisted, effectively favored one
clause over the other since the “State is constitutionally compelled to
carve out an exception.”14 Later that decade, in the course of resolv-
ing challenges by conscientious objectors to the application of a statu-
tory exemption for persons morally opposed to war, the justices again
declined to address, much less resolve, the latent conflict between
Free Exercise and Establishment. They went no further than to rec-
ognize this elusive tension between solicitude for persons of faith,
a clause that seemed to compel special treatment for the religiously
based claim, and an Establishment Clause that cast grave doubt on the
validity of such solicitude—at least in the absence of a square holding
that Free Exercise required such a dispensation.
Such an uneasy accommodation persisted for many years. In the
late 1990s, the justices struck down an act of Congress that defined
“free exercise of religion” more protectively than the Supreme Court’s
own view of that First Amendment liberty. For most members of the
Court, such a judgment rested sufficiently on a finding that Con-
gress simply lacked the constitutional power to superimpose its own
interpretation of a basic Bill of Rights guarantee, because such author-

ity resided firmly with the judiciary.15 But for Justice John Paul Ste-
vens, the statute also contained a very different constitutional infirmity;
for him, granting such a special “preference for religion, as opposed
to irreligion, is forbidden by the [Establishment Clause of the] First
Amendment.”16 In short, in Justice Stevens’s view, Congress could
not constitutionally extend special protection to a religious claimant
in excess of the protection that a similarly situated nonreligious claim-
ant would receive—and that seemed to him precisely what Congress
had done in the Religious Freedom Restoration Act (RFRA).
Congress was not, however, to relinquish its solicitude for the
religiously motivated objector. Soon after the invalidation of its first
statutory effort, a bipartisan majority crafted a somewhat narrower
protective measure aimed at two designated sectors of government
policy and practice. Called the Religious Land-Use and Institutional-
ized Persons Act (RLUIPA), this new law invoked a wholly quite dif-
ferent constitutional basis for congressional action and targeted only
zoning laws and treatment of prisoners, two areas in which extensive
testimony had detailed disproportionate claims of religious discrimi-
nation or differential treatment. As the early challenges to this new
law reached the courts, Justice Stevens’s dilemma could no longer
be avoided. But by the time the first such case had been docketed
in the Supreme Court, the daunting task of reconciling free exercise
and nonestablishment had already returned in a different form. The
issue was one that would have been familiar to Jefferson and Madi-
son—the constitutionality of a Washington State scholarship program
that denied funding only to otherwise eligible students who had cho-
sen to pursue graduate degrees in divinity or theology in preparation
for the ministry.
Supporters of this exclusion insisted that, in a federal system, states
may be more restrictive in matters of church and state than federal
law requires, if they chose (as several American jurisdictions have cho-
sen) to erect a higher wall of separation between government and
religion. A majority of the justices accepted this argument. In one
of his last opinions before retirement, Chief Justice Rehnquist noted
the latent conflict between the two First Amendment guarantees, but
recalled that “we have long said that ‘there is room for play in the
joints’ between them. In other words, there are some state actions
permitted by the Establishment Clause but not required by the Free
Exercise Clause.”17 Curiously, no case citation or other invocation of
legal authority followed the quoted phrase; what the chief justice con-
fidently declared “we have long said” in this regard was in fact a new
and bold statement—possibly implicit in the outcome of earlier cases

where the two clauses had been juxtaposed, but never explicit until
the spring of 2004.
Affirmation of “play in the joints” was soon to follow in the specific
context of the “institutionalized persons” protections of RLUIPA.
Sustaining a prisoner’s claim that certain restrictions upon his reli-
gious activities and denial of access to sacred publications violated
rights that Congress had recently reinforced, the Court held decisively
that the new law embodied a “permissible government accommoda-
tion of religious practices,” quite consistent with the previous term’s
“play in the joints” notion.18
This Solomonic resolution would undoubtedly please Jefferson and
Madison, although they might be dismayed by the protracted and tor-
tuous course the courts had followed in reaching it. Their insistence
that religious liberty could be adequately protected only through the
twin guarantees embodied in the First Amendment surely could not
have been meant to disable one arm of government from doing what
the other was compelled to do at the behest of a religious objector.
Although the Framers left us no explicit guidance on how to interpret
these two paradoxical provisions, they surely implied a design that
religious freedom would only be secure if safeguards of both types
were formally enshrined in the new Constitution and were enforced as
parallel guarantees. The wonder is that it took so long for our courts
to recognize and condone that elusive “play in the joints,” which the
Framers might have characterized in less vernacular terms but would
have undoubtedly acclaimed.
A brief summary of the current state of U.S. law in this area might
be helpful before looking abroad. Could our public life be character-
ized as completely devoid of any evidence of “an establishment of reli-
gion”? A fair assessment must yield a negative answer, and for myriad
reasons. For one, clergy enjoy a special place under our laws—carrying
out vital delegated governmental tasks, such as solemnizing marriages,
in ways that exclude not only nonbelievers, but also a substantial seg-
ment of the community of faith who do not ordain clergy and thus are
unable to take advantage of special relationships. Over the years, espe-
cially in the past decade, our Supreme Court has found various forms
of accommodation between government and religion to be compatible
with the Establishment Clause. It has sustained Sunday-closing laws
that reflect an unmistakable religious inspiration,19 and allowed gov-
ernment to create educational vouchers that may be spent for tuition
and other costs at church-related parochial schools,20 to cite but two
of myriad areas in which challenged proximity between church and

state has been found not to cross the “wall of separation.”
Public museums and galleries abound with works of art that reflect
and depict unmistakably religious themes, and many public ceremonies
(including congressional and state legislative sessions) open with invo-
cations of divine guidance, all with the Supreme Court’s imprimatur.21
Thus, while anything resembling a formally established and publicly
supported church would be anathema in the United States, complex
and beneficial relationships between government and religion have
been deemed surprisingly compatible with the First Amendment.
Je f f er s o n’s D ual G uar antees of Reli g i ous

Freedom: An Inter national Perspective
All too briefly, the foregoing survey provides limited insight into the
U.S. domestic experience, guided as it has been from the outset by a
distinctively dual approach to religious freedom. Our major focus now
turns abroad, in a quest for comparable indicia of the impact of the
Jeffersonian philosophy on religious freedom elsewhere. We have at
least anecdotal evidence of what was undoubtedly the earliest foreign
response to the adoption of the Virginia statute in 1786. Thomas
Jefferson was on diplomatic mission in Paris throughout this period,
leaving James Madison back in Richmond, not only as floor manager
for such legislation, but also as principal amanuensis for the cause.
Madison’s immediate report to his absent colleague of their signal
victory in securing legislative endorsement for the nonestablishment
principle went curiously unanswered for some months. Jefferson’s
only excuse was that “an unlucky dislocation of my right wrist has
disabled me from using my pen.” William Lee Miller provides a more
credible—and quite delightful—insight into the cause for the infelici-
tous injury: “Feeling frisky one day in Paris when out walking with
Maria Cosway during their flirtation, he had attempted to jump a
fence, and failed.”22
When the wrist had healed enough to permit Jefferson to resume
correspondence, he apprised Madison of the earliest international
response to news of America’s earliest declaration of church-state
separation: “The Virginia Act for religious freedom has been received
with infinite approbation in Europe and propagated with enthusiasm.
I do not mean by the governments, but by the individuals which com-
pose them. It has been translated into French and Italian, has been
sent to most of the courts of Europe, and . . . is appearing in most
of the publications respecting America.” Jefferson’s triumphal report
from Paris concluded a coda that now seems exuberant if not hyper-
bolic: “It is honorable for us to have produced the first legislature who
had the courage to declare that the reason of man may be trusted with
the formation of his own opinions.”23
Such euphoria might seem excessive until one recalls that, approach-
ing his death, Thomas Jefferson asked to be remembered by the Amer-
ican people for only three accomplishments (formally inscribed on his
tombstone): drafting of the Declaration of Independence, founding
of the University of Virginia, and authorship of the Statute of Virginia
for Religious Freedom. Serving as governor, secretary of state, and
president were, in his words, “things the people did for me” in con-
trast to the three (and only three) formally celebrated “things I did for
the people.” Thus the high expectations he held for the statute, once
enacted by the General Assembly, acquire a vital explanatory context
from his own self-assessment.
Given Jefferson’s initially high hopes for the international impact
of the triumph of separation in Virginia, the actual experience of the
ensuing two and a quarter centuries would profoundly have disap-
pointed him. There are, to be sure, nations in which a surviving estab-
lishment coexists with substantial religious freedom, though typically
(as in the United Kingdom) because of strong safeguards in the courts
and surely not because of any mandated separation of church and
state. There are other countries where secular principles dominate, as
in Turkey, though without a consistently secure and pervasive con-
dition of religious liberty. In the end, there appear to be only two
foreign nations in which both free exercise and nonestablishment
both receive explicit constitutional commitment—France and Austra-
lia—though without actual protection of Jeffersonian proportions in
either system. The experience of both those nations does, however,
deserve analysis in some depth before consigning Jefferson’s interna-
tional aspirations to failure.
The relationship between government and religion varies so widely,
even across Western Europe, that generalization is hazardous, if not
impossible. Indeed, no two nations approach this issue in precisely
the same manner. Scholars who have studied the varied European
structures describe a spectrum in formal policy or constitutional law,
ranging from the mandated secularism of France and Turkey to the
formal establishment of the United Kingdom.24 Yet the actual experi-
ence across this spectrum does not necessarily accord with the for-
mal provisions, and in some cases it may actually run quite counter
to inferences that a casual observer would draw solely from reading
the relevant charter provisions. While most European nations have
adopted constitutional safeguards of their own for religious worship

and expression, and the European Convention on Human Rights and
Fundamental Freedoms expressly protects the free exercise of religion,
the current pattern with respect to relations between church and state
continues to defy classification.
The spectrum begins with such conventional establishments as
those that survive in some Scandinavian nations, though even that
once-homogeneous region is now confused by the termination of the
ancient Swedish establishment early in 2000, and most recently by the
mid-December 2006 action of the General Synod of the Established
Lutheran Church of Norway in voting overwhelmingly to end 470
years as the official state religion of that country. Moreover, the pace
of change and evolution appears to be accelerating in the twenty-first
century. Worldwide Religious News reported such trends near the end
of 2006 under the revealing headline, “Church-State Relations Across
Europe Heading Toward ‘New Landscape.’”25
Then there are other markedly different patterns that strike for-
eign observers as anomalous. In Italy, the Roman Catholic Church
ceased only in 1984 to be the official state religion, under a constitu-
tion that declares that “State and Catholic Church are each within
its own ambit, independent and sovereign.” Although the Spanish
constitution confidently declares that there is no established church,
the Spanish government has entered a concordat with the Catholic
Church that provides to that religious body financial and other privi-
leges and perquisites that are unavailable to any other community of
faith. While Ireland (despite its overwhelmingly Catholic population)
has no established church, the Irish constitution begins by declaring
that “in the name of the Most Holy Trinity, from Whom is all author-
ity and to Whom, as our final end, all actions both of men and States
must be referred, We, the people of Ireland, humbly acknowledge
all our obligations to our Divine Lord, Jesus Christ.” The document
further recites that the “State acknowledges that the homage of public
worship is due to Almighty God. It shall hold his name in reverence
and shall respect and honour religion.” Nonestablishment, even dis-
avowal of an establishment, clearly does not compel national denun-
ciation of religious influence or inspiration as a force in public life.26
An American’s casual inclination to equate nonestablishment with
religious freedom—deriving that equation logically enough from
Jeffersonian principles—must be rigorously resisted. So enticing a
correlation, in fact, proves surprisingly tenuous at both ends of the
spectrum. On one hand, Turkey’s mandated secularism by no means
guarantees religious liberty as we understand it—nor for that matter
does it ensure even the independence of the dominant Muslim clergy

and their followers. A New York Times editorial, prompted by Pope
Benedict XVI’s historic 2006 visit to Turkey, observed that “Tur-
key’s rigid secularism has been a central tenet of the republic since
its founding—and all too often has led to repressing minority rights
and religious freedom.” The editorial adds that this “rigidity is now
giving way—due in large part to the reforms required to meet the
membership criteria of the European Union.”27 Much the same could
be said of France, although we defer specific analysis to a later and
separate section.
Meanwhile, the actual condition of religious freedom is surely
as secure in the United Kingdom as in almost any other European
nation, despite the survival of what may be the most traditionally and
formally established church. The relationship is anomalous; while the
Church of England is not financially supported by the government,
both Crown and Parliament must approve any major change in church
policy or practice. The ordination of women, for example, required
both parliamentary and royal approval. Bishops are appointed by the
queen, as supreme governor of the Church of England, on recommen-
dation of the prime minister, who chooses from two names that have
been submitted by the Crown Appointments Commission (a church
body). Every British prison must have its own Anglican chaplain. Reli-
gious education curricula are approved by local Standing Advisory
Committees (one of which is reserved for the Church of England,
while all other denominations are grouped together in the other com-
mittee—thus ensuring an effective veto to the Church of England).
Recognizing such anomalies, a British commentator marshaled some
of the cogent reasons why becoming a secular nation might better
serve the future of the United Kingdom by asking in a Sunday Times
column, “Is It Time to Take God Out of the State?”28
Yet the European Court of Human Rights has consistently declared
that establishment of a particular faith, per se, does not violate the
religious freedom provisions of the European Convention—hold-
ing, for example, that Austrian authorities could take into account
the dominance of Roman Catholicism in the region, where the issue
had arisen in applying the national film code, without abridging reli-
gious liberty.29 Indeed, two international scholars have thoughtfully
argued that establishment and religious liberty are not antithetical,
but that a benign (albeit close) relationship between church and state
may actually foster—and certainly need not subvert—freedom of
conscience and worship.30 While that thesis may transcend the issue
of mere compatibility, it does serve to remind those who approach

this nexus with a Jeffersonian bias that there are other, starkly
different, perspectives.
The special cases of two nations merit closer scrutiny. Indeed, France
and Australia seem to be the only two nations that formally mandate
the separation of church and state while concurrently ensuring protec-
tion for free exercise. It was from Paris, of course, that Thomas Jef-
ferson orchestrated the Virginia General Assembly’s adoption of his
Statute for Religious Freedom. And it was from Paris that he wrote
to his floor manager in Richmond, James Madison, of the “infinite
approbation” with which the Virginia statute and its dual guarantees
for “the reason of man” had been received—though he was careful
to stress that such approbation came from ordinary citizens and not
from government. Nonetheless, the formal parallels between France
and the United States are striking and nearly unique. Nonestablish-
ment and separation of church and state are mandated by the statute
of 1905 in terms that resemble, though they do not precisely paral-
lel, the pertinent portions of the American First Amendment. Closely
analogous to the U.S. Free Exercise Clause is the provision of the
French Constitution of 1958 that declares that the republic respects
all [religious] beliefs.
Thus far, Jefferson might find in contemporary France some con-
firmation of his hopes for international accord, even though the
French term laicite, or “secularism,” is nowhere enshrined in the Bill
of Rights—nor for that matter anywhere else in U.S. law. Yet as the
two systems have evolved, the differences have become far more strik-
ing than the similarities. Quite revealing is the critical comment of
Professor Dominique Custos, a French scholar of public law, who
notes that “despite the shared principle of secularism, the strong
dichotomy between belief and expression underlying the French law
of 2004 [banning the wearing of conspicuous religious symbols by
public school students] is predominantly perceived in the U.S. as a
frontal violation of liberty of conscience [as applied to female Muslim
students wearing head scarves in public].” Professor Custos adds that
“at the root of French laicite there is a strong logic of structural sepa-
ration between Church and State” that is not violated by governmen-
tal regulation of such religiously mandated symbolism as the wearing
of visible head coverings.31 She cautions, however, against finding or
inferring overly neat transatlantic parallels: “Through laicite, France
exhibits a uniqueness which distinguishes it not only from those
countries that combine protection for religious pluralism and a state
religion, but also from those which embrace separation of Church

and State with an asserted sense of accommodation.”32
A candid U.S. observer should add that the recent course of U.S.
law on such matters would not be entirely congenial to Jefferson.
From the first Free Exercise decision in 187833 to a change of heart in
1963,34 the U.S. Supreme Court also recognized a distinction between
belief or expression and religious practice, finding only the latter to
be clearly protected by the Free Exercise Clause. Since 1990, follow-
ing another change in the dominant view of the high court, religious
liberty claims are given deference or primacy only upon proof that the
government has singled out religious activity for special treatment,
and not where religious practice suffers from the incidental effect of a
religiously neutral law.35 While the latter distinction has recently been
mitigated by congressional intervention, to which the courts have
eventually deferred, the basic status of Free Exercise law has not been
consistently faithful to the standards set forth by Jefferson and Madi-
son at the framing of the First Amendment.
In the specific matter of religious garb, quite specifically head cov-
erings mandated by faith, one must also note that the U.S. Supreme
Court—even during the benign period from 1963–90—upheld
an Air Force policy that barred an Orthodox Jewish officer from
appearing in court with a yarmulke covering his head, as his sacred
beliefs clearly mandate.36 One might also concede in candor that
our Supreme Court sustained the constitutionality of Sunday-clos-
ing laws against challenges from both Establishment and Free Exer-
cise perspectives37—noting the exquisite irony that the courts of our
northern neighbor, though lacking comparably explicit constitutional
guarantees of either type, have found Canada’s provincial Sunday
laws to impose “indirect coercion on Sabbatarians and others who
might wish to conduct business on the Christian Sabbath.”38 None-
theless, returning to France, Professor Custos’s perception seems
accurate: U.S. legal scholars deem the rigorous enforcement of the
French head-scarf ban discordant to Jeffersonian values and precepts.
Whether generalization from this most recent example is entirely fair
or sufficient, the fact remains that French and U.S. perspectives do
diverge in important if subtle ways. Were Jefferson to return to Paris
and there observe the current situation, after despairing somewhat
of how the dual guarantees of religious liberty have fared in his own
country, he would be especially troubled by current conditions in the
nation that served for many years as his adopted home, and always a
source of ideological inspiration.
This discussion leaves Australia as the only other foreign nation

where parallel guarantees of free exercise and nonestablishment find
express constitutional recognition. There the parallel is even more
striking than it is with France. Section 116 of the Australian Con-
stitution, ratified in 1901, explicitly endorses both principles: “The
Commonwealth shall not make any law for establishing any religion,
or for imposing any religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Commonwealth.”
Curiously, there is no analogous provision designed to protect free
speech or press; lest this omission be attributed to inadvertence, one
should note that Australia’s voters have several times rejected com-
parably explicit guarantees of free expression, leaving it to the high
court to protect those interests—as it finally did in 199239—under the
implications of more general constitutional provisions. Superficially,
then, one might expect to find in Australian jurisprudence the closest
approximation to U.S. principles of religious freedom.
Once again, actual practice falls disappointingly short of such hopes.
Australian courts and scholars have persistently stressed significant dis-
parities between the precise language of the First Amendment’s Estab-
lishment Clause and Section 116.40 First is a vital difference in scope
and coverage. While (despite the textual focus on “Congress”) the
U.S. Bill of Rights has for two-thirds of a century been construed as
applying no less to the states and localities than to the federal govern-
ment, Australia’s express reference to “the Commonwealth” has con-
sistently been held to limit Section 116’s reach to acts of the national
Parliament, giving it no effect whatever upon policies and practices of
the states or cities. Indeed, it has been suggested that this particular
clause might even be superfluous or redundant, since “establishing
religion” appears nowhere among the federal Parliament’s enumer-
ated powers, so that a violation simply could not occur through legis-
lative action for reasons even more basic than the constraints imposed
by Section 116.
Other notable contrasts distinguish the two constitutions and their
pertinent provisions. An Australian scholar notes that “the difference
in terminology is significant”: While the U.S. Bill of Rights enjoins
any “law respecting an establishment of religion,” Section 116 bars
the Commonwealth of Australia from enacting “any law for establish-
ing any religion”—suggesting that the Australian provision “is aimed
at any type of assistance which tends to promote the interests of one
church or religious community over those of another, but not, unlike
the First Amendment, at prohibiting the government from aiding
religion in general.”41 One might also observe that, in contrast, the

sparest possible interpretation of the U.S. Establishment Clause—
effectively confining its reach to federal government interference with
the surviving established state churches—would be inconceivable in
Australian jurisprudence. Indeed, a parallel issue simply could not
have arisen there, and surely not in barely a century, which is the time
since Australia’s adoption of its current constitution.
The number of Section 116 cases reaching Australia’s high court
has, not surprisingly, been modest. Two major rulings a quarter cen-
tury ago largely shape the field. Both cases involved challenges under
Section 116’s Establishment Clause to federal programs of financial
aid to church-affiliated parochial schools, a subvention created in
1969 in response to intense political pressure from the religious com-
munity. Although Roman Catholic schools were the overwhelming
beneficiaries of this program, any community of faith that maintained
such schools would theoretically have been entitled to comparable
support. The high court majority flatly rejected the challengers’ claim
that such direct financial support violated Section 116.42 Lest there
be any doubt of the majority’s awareness of U.S. Supreme Court rul-
ings that would have yielded a contrary result, the lone Australian
high court dissenter (Justice Murphy) urged upon his colleagues a
strict theory of separation between church and state, relying largely
on U.S. judgments that the rest of the court had simply dismissed as
inapposite. For the majority, the reach of Section 116 fell far short of
the challenged government aid program: “By the establishment of
religion is meant the erection and recognition of a State Church, or
the concession of special favors, titles, and advantages to one church
which are denied to others. It is not intended to prohibit the Fed-
eral Government from recognizing religion or religious worship.”43
So sweeping a distinction essentially put to rest any hope that Sec-
tion 116 would be construed, even with regard to Australian federal
programs, in a way that could closely parallel the First Amendment’s
Establishment Clause.
There remains for discussion a major gloss on the Australian Supreme
Court’s approach to church and state issues. “Purpose” emerged as
a key desideratum in the parochial school aid case. Merely providing
benefits to religion—even substantial benefits—was deemed to be a
permissible effect of serving a valid secular purpose through religious
means. Apart from expressly favoring one particular faith against oth-
ers, all that would be barred under Section 116 (though no Austra-
lian case seems to have found such a violation) would seem to be a
program whose primary purpose was to benefit religious institutions
rather than to use those institutions as a means to achieving a secular

goal. The depth and nature of the legislative history that such a find-
ing would demand suggests the remoteness of the prospect that an
Australian federal program would be declared unconstitutional under
Section 116.
Though none was needed, recent events have provided further and
dramatic evidence of the disparity of U.S and Australian views in this
area. In response to former Prime Minister John Howard’s urging,
the Australian Department of Education, Science, and Training late
in 2006 appropriated some $90 million to enable public, private and
church-related schools to employ in-house chaplains. The religious
affiliations of those chaplains were to be determined by the local
school authorities; their presence in the schools would be designed
(in the government’s view) to augment secular counseling services by
providing “spiritual and religious advice, support, and guidance.”44
Moreover, explained the prime minister, all prospective school chap-
lains will be “formally approved by the government because we’re
going to provide funding.” Although the announcement of this pro-
gram did evoke substantial opposition from secular forces in Austra-
lia—concerned not only about an unprecedented degree of direct
government involvement in religious matters, but also fearing serious
risks of divisiveness in choosing clergy—there appears to have been
neither a legal challenge to its inauguration nor a likely prospect that
any such challenge would succeed in the courts should it be pursued.
Yet any such program would be so clearly contrary to U.S. principles
of separation of church and state that even advocates for a greater
religious presence in the nation’s schools would be most unlikely even
to seek such largesse.
Before despairing entirely of an international acceptance of the Jef-
fersonian vision of religious liberty, a brief visit to Canada might offer
a slightly more hopeful perspective. Before one assumes that Canada
has slavishly followed its neighbor to the south in the shaping of civil
liberties, it is worth noting some striking differences that have devel-
oped in closely related areas. Canadian courts have sustained “hate
speech” laws in both criminal and civil contexts, in stark contrast to
the insistence of U.S. jurisprudence that such restraints on speech
violate the First Amendment.45 Canada also permits suppression of
sexually explicit material on the basis of its demeaning effect upon
and deep offense to women, despite the seemingly clear language
of Canada’s constitutional safeguard for free expression.46 Canadian
courts may grant damages to a person claiming a deprivation of pri-
vacy interests simply by having been photographed without consent
in a public place, even though U.S. law would not allow such redress
consistent with free speech and press. In these and other respects,
Canada and the United States, though sharing a common commit-
ment to free expression, have diverged quite sharply and visibly in
the past two decades. Thus any notion that Canadian judges would
intuitively and uncritically emulate their U.S. counterparts in defining
religious liberty should be set aside.
When it comes to religious freedom, however, the parallels are far
closer. A review of challenges to Sunday-closing laws reveals a Cana-
dian view considerably more protective of the Sabbatarian’s rights than
that of U.S. law—at least as of 1961, when the issue was last before
the Canadian Supreme Court. Such issues reach Canadian courts
under the Charter of Rights and Freedoms, which contains an “over-
ride” or “limitations” clause that may trump a basic safeguard under
certain conditions (as with hate speech or sexually demeaning mate-
rial). When it came to the Canadian Sunday-closing laws, however,
the Supreme Court of Canada found that such bans inflicted on non-
Sunday worshippers “a form of coercion inimical to the spirit of the
Charter and the dignity of all non-Christians.” While such non-Sun-
day adherents were not legally compelled to attend church or to pray
on Sunday, they were effectively required to “remember the Lord’s
Day of the Christians and keep it holy.” They were also “prohibited
for religious reasons from carrying out activities which are otherwise
lawful, moral, and normal.” Thus the non-Sunday worshipper was,
in the view of Canada’s highest court, being indirectly compelled to
observe a religious practice not of his or her own choosing—and that
type of coercion was held to abridge the Charter.47
In a similar vein, Canadian courts have held that public school
students may not be forced to initiate action in order to be excused
from religious exercises, since such intervention might embarrass or
stigmatize the dissenting student.48 Thus schools could not justify
such exercises simply by offering an opt-out procedure to objecting
students—nor in the view of Canadian courts could a town council
escape an adverse judgment under the Charter for mandating recital
of the Lord’s Prayer at the start of council meetings.49 While the
public school case is consistent with U.S. Supreme Court precedent,
as the town council prayer case comports with lower-court rulings,
what is striking is the further reach of Canadian religious freedom law
to invalidate Sunday-closing laws, which remain presumptively valid
in the United States. Nonetheless, the doctrine of “indirect coer-
cion” has received substantial recognition in U.S. law and has actually
commanded a majority in recent cases that struck down clergy-led
prayers at public high school graduation ceremonies50 and student-

led but officially sanctioned prayers at the start of Friday night foot-
ball games.51
This brief international tour brings us back at length to Thomas
Jefferson. We need to recall that the platform for his initially euphoric
view of the Virginia statute’s potential was not Richmond, but Paris—a
perspective from which, at that time, there seemed ample basis for his
boundless optimism. The prospect of intense controversy over Muslim
head-scarves in French public schools lay centuries in the future. That
reality reminds us of two other elements that Jefferson would surely
wish us to note in assessing this part of his legacy. First, that even in
1786 the United States was already a more religiously diverse and
complex nation than most other countries would become for at least
a century—or ever, in many cases. Second, he would wish us to note
that we inherited from the Framers what has become, essentially by
default, by far the world’s oldest written constitution. The guarantees
of the First Amendment were ratified a bit more than 215 years ago;
their terms have not been altered in any respect, despite intense pres-
sures to ban flag burning, or return prayer and Bible reading to public
school classrooms, or validate pursuit of political “subversives.”
Thus Jefferson’s final word to those who seek in the twenty-first
century to assess the impact of his views on church and state would be
a plea for patience and understanding, reminding us that he and his fel-
low Framers crafted a document not only for a uniquely complex and
disparate nation, but also for all time and human experience. That any
other country should have emulated our example thus seems highly
improbable—as Jefferson and Madison would have anticipated.
Notes
1. Hein v. Freedom from Religion Foundation, 127 S. Ct. 2553 (2007).
2. Flast v. Cohen, 392 U.S. 83 (1968).
3. See Lance Banning, Jefferson & Madison: Three Conversations from the
Founding (Madison, WI: Madison House, 1995), 116–17.
4. Banning, Jefferson & Madison, 118–24.
5. For an excellent account, see William Lee Miller, The First Liberty (Wash-
ington, DC: Georgetown University Press, 1986), 1–75.
6. See Richard Labunski, James Madison and the Struggle for the Bill of
Rights (New York: Oxford University Press, 2006), 223.
7. Everson v. Board of Education, 330 U.S. 1 (1947).
8. Wallace v. Jaffree, 472 U.S. 38 (2985) (Rehnquist, J., dissenting).
9. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S.
819 (1995) (Thomas, J., concurring).
10. Everson v. Board of Education.

11. Abington School District v. Schempp, 374 U.S. 203 (1963).
12. Sherbert v. Verner, 374 U.S. 398, 409 (1963).
13. Ibid. at 416 (Stewart, J., concurring).
14. Ibid. at 422–23 (Harlan, J., dissenting).
15. City of Boerne v. Flores, 521 U.S. 507 (1997).
16. Ibid. at 537 (Stevens, J., concurring).
17. Locke v. Davey, 540 U.S. 712, 718 (2004).
18. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).
19. McGowan v. Maryland, 366 U.S. 420 (1961).
20. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
21. Marsh v. Chambers, 463 U.S. 783 (1983).
22. Miller, The First Liberty, 67.
23. Ibid., 74–75.
24. See, for example, Carolyn Evans and Christopher A. Thomas, “Church-
State Relations in the European Court of Human Rights,” Brigham Young
University Law Review, 2006, no.3: 699, 705–6.
25. See Worldwide Religious News, “Church-State Relations Across Europe
Heading Toward ‘New Landscape,’” Dec. 7, 2006, http://www.org/
article.php?idd=23618.
26. See Brett G. Scharffs, “The Autonomy of Church and State,” Brigham
Young University Law Review, 2004, no. 4: 1217, 1237–39.
27. New York Times, “Benedict Goes to Turkey,” Nov. 20, 2006, A26.
28. Bryan Appleyard, “Is It Time to Take God Out of the State?” Sunday
Times (London), Oct. 22, 2006, 14.
29. See Rex Ahdar and Ian Leigh, “Is Establishment Consistent with Religious
Freedom?” McGill Law Journal 49, no. 3 (2004): 635, 660.
30. Ahdar and Leigh, “Is Establishment Consistent,” 680–81.
31. Dominique Custos, “Secularism in French Public Schools: Back to War?”
American Journal of Comparative Law 54 (2006): 337, 340–41.
32. Custos, “Secularism in French Public Schools,” 337.
33. Reynolds v. United States, 98 U.S. 145 (1878).
34. Sherbert v. Verner.
35. Employment Division v. Smith, 494 U.S. 872 (1990).
36. Goldman v. Weinberger, 475 U.S. 503 (1986).
37. Braunfeld v. Brown, 366 U.S. 599 (1961).
38. Adhar and Leigh, “Is Establishment Consistent,” 668 n.185.
39. Australian Capital Television Pty Ltd. v. Commonwealth, 177 C.L.R. 106
(Austl. 1992).
40. See David S. Bogen, “The Religion Clauses and Freedom of Speech in
Australia and the United States: Incidental Restrictions and Generally
Applicable Laws,” Drake Law Review 46 (1997), 53, 57–58.
41. Gabriel A. Moens, “Church and State Relations in Australia and the
United States: The Purpose and Effect Approaches and the Neutrality
Principle,” Brigham Young University Law Review, 1996, no. 4: 787,
791.
42. Attorney-General of Victoria ex el. Black v. Commonwealth, 146 C.L.R.

559 (Austl. 1981).
43. Ibid. at 579.
44. Americans United for Separation of Church and State, “Hackles Up
Down Under: Aussies in Uproar Over Tax Funding of School Chap-
lains,” http://blog.au.org/2007/01/18/hackles_up_down/ (last
accessed July 15, 2008).
45. Regina v. Keegstra, [1990] 3 S.C.R. 697.
46. Regina v. Butler, [1992] 1 S.C.R. 452.
47. Regina v. Big M Drug Mart, Ltd., [1985] 1 S.C.R. 295.
48. Canadian Civil Liberties Union v. Ontario (Education Minister), (1990)
71 O.R.2d 341, 65 D.L.R. (4th) 1.
49. Reitag v. Penetanguishene (Town), (1999) 47 O.R.3d 301, 179 D.L.R.
(4th) 150.
50. Lee v. Weisman, 505 U.S. 577 (1992).
51. Santa Fe Independent School District v. Doe, 530 U.S. 271 (2000).
Chapter 4
The Road from M onticello

The Influence o f t he Amer i ca n
Co ns titu tio nal Expe r i ence i n O t her L a nd s
A. E. Dick Howard
In August 1784, Thomas Jefferson arrived in Paris. The next year,

he succeeded Benjamin Franklin as American Minister to the French
Court. Jefferson seems not to have enjoyed the cold winters in Paris,
but he loved France. Traveling extensively, he explored France’s his-
toric countryside, admired its architecture, and acquired a taste for
French wine.
A true child of the Enlightenment, Jefferson was no mere tour-
ist. He delighted in good conversation and thirsted to explore and
expand the catalog of human knowledge. His philosophy is nicely
summed up in his ambition “to promote the general good of mankind
by an interchange of useful ideas.” His Notes on the State of Virginia
(first printed in 1785) was written in response to queries put to him
by the Marquis de Barbé-Marbois, secretary of the French Legation.
Jefferson took particular interest in Jean-Nicolas Démeunier’s work
on his Encyclopédie Méthodique, especially essays on the United States.
At Jefferson’s prompting, Démeunier included in his encyclopedia the
text of the Virginia Statute for Religious Freedom, written by Jeffer-
son and enacted into law by the Virginia legislature in 1786.
The American founding period occupies a special place in the his-
tory of modern constitutionalism. In an age when ideas of democ-
racy and republican government were inchoate and untested, the
Founders knew that they were embarked on a remarkable journey
74 A. E. Dick Howard
of discovery. It fell to the Americans to give the concept of popu-

lar sovereignty a distinctive form through the use of constitutional
conventions, such as that which produced the Massachusetts Con-
stitution of 1780. Through the gradual emergence of judicial review
(what Europeans today would call constitutional review), American
courts devised an effective means of making written constitutions
superior to legislative and executive actions, a means tested tenta-
tively by state courts and ultimately given full voice in Chief Justice
John Marshall’s famous opinion in Marbury v. Madison. The notion
of separation of powers was already familiar to Europeans, but the
Americans reshaped it from giving voice to different social orders
to limiting government power by way of separating the legislative,
executive, and judicial functions of government. Especially original
was American federalism, a compromise based not in abstract think-
ing, but in political realities reflected in the debates at Philadelphia in
1787. In matters of religion, Americans were already moving beyond
arguments for toleration (itself largely unrealized in Europe) to cre-
ating a constitutional basis for the free exercise of religion and for
the separation of church and state, the boldest step being Virginia’s
enactment of Jefferson’s statute.
The America that Jefferson knew was, in many ways, a far different
place from the France he encountered in the 1780s. Although not yet
the kind of democracy we are familiar with in our own time, America
was, by European standards, already very democratic. There was, of
course, no monarchy. Nor was there an entrenched social hierarchy,
notwithstanding a measure of deference given to leading Americans
in the late-eighteenth century. Unlike France, America had no perva-
sive bureaucracy. And while there were established churches in various
American states, the growing diversity of sects and beliefs made any
established church’s hold open to challenge.
From the earliest years of the American founding era, word of the
American experiment spread quickly on the other side of the Atlantic.
Sometimes ideas were spread by Europeans, such as French soldiers
who returned to their homeland after the battle of Yorktown. Ameri-
cans themselves were often eager to tell their new nation’s story. By
1777, the year of Saratoga (when the military outcome of the Ameri-
can Revolution was far from assured), Benjamin Franklin had come to
France. Already the text of the early state bills of rights and constitu-
tions (notably Virginia’s Declaration of Rights of 1776) were begin-
ning to appear in Europe, both in English and in other languages,
especially French.
The Road from Monticello 75
Thinkers of the French Enlightenment were thrilled to see what

seemed to them to be the planting, in an actual time and place, of
the lofty ideals they had been promoting. The Marquis de Condorcet
declared, “It is not enough that the rights of man be written in the
books of philosophers and inscribed in the hearts of virtuous men.
The weak and ignorant must be able to read them in the example of
a great nation. America has given us this example.” The Declaration
of Independence stated goals to which many Frenchmen would have
subscribed; it was through the process of making and implementing
the American state and federal constitutions that reformers in Europe
were inspired to see the possibility of realizing those goals.
Fr a nc e in the Ag e of Revoluti on
The American founding period offered the French more than an
abstract object of interest; the American state constitutions and bills
of rights served to frame the debate in France over fundamental
documents in the years beginning in 1789. Virginia’s Declaration
of Rights, in whose drafting George Mason was the central figure,
was especially influential. Today, the Virginia Bill of Rights (most of
which derives from the original Declaration) appears as Article I of
the Commonwealth’s Constitution. When the Williamsburg conven-
tion wrote the original Declaration, however, the delegates drafted
and approved two documents: a declaration of rights and a frame
of government. This sequence reflected a natural-law assumption,
steeped in the tradition of John Locke, that rights precede govern-
ment. Having stated rights, the Virginia delegates then proceeded to
the body of the Constitution.
Although the French theory of rights is not the same as that of
the Anglo-American tradition, it is interesting that the revolutionary
generation in France took two steps resembling those taken by the
Virginians—first, a declaration of rights, then a constitution. In craft-
ing their Declaration, the French framers had immediate access to the
text of the Virginia document. The similarities are striking, although
social conditions (especially the pressing need in France to root out
pervasive privileges) led to some differences. Of George Mason, Con-
dorcet said that in drafting the Virginia Declaration, Mason deserved
“the eternal gratitude of mankind.” Thus one can trace how France
drew heavily upon the American example in declaring rights as the
foundation of society.
The story of drafting the first French Constitution is a different

one. Here, too, events in America—the early American state constitu-
tions—framed the French debate. The first state constitutions were
all variations on themes of republican government, typically reposing
great power in the legislative branch as being closest to popular will,
providing for frequent elections, and exhibiting distrust of executive
power. An important variation lay in deciding whether the legislature
should be unicameral (as in Pennsylvania) or bicameral (as in Massa-
chusetts). Partly because of the precedent of the Massachusetts Con-
stitution of 1780, and stoked by the powerful example of the 1787
Federal Constitution, America proved to be inexorably on the track
of bicameralism (today, of the fifty states, only one, Nebraska, has a
unicameral legislature).
Years before France’s National Assembly began work on the first
French Constitution, there was a vigorous exchange of views, on both
sides of Atlantic, as to the proper model to protect the rights of a free
people. No one was more robust in making the case for American
bicameralism than John Adams, the chief architect of the Massachu-
setts 1780 Constitution. In his massive Defence of the Constitutions
. . . of the United States, Adams saw the second chamber as a way
of keeping people of power and position from subverting the influ-
ence and interests of the larger society. Adams and his Massachusetts
Constitution had their admirers in France, who also were influenced
by the English experience with mixed government. In the National
Assembly, Jean-Joseph Mounier proposed that powers be separated
among representatives, a senate appointed for life, and the king. Oth-
ers, notably Honoré Gabriel Mirabeau (arguably the most powerful
orator of the Assembly) and Louis-Alexandre de la Rochefoucauld,
also invoked American precedents in arguing for bicameralism and the
separation of powers.
Arguments for focusing the general will (an ideé fixe in the think-
ing of Rousseau) in a single legislative assembly proved more power-
ful than the appeals to American bicameralism. Condorcet may have
admired Virginia’s Declaration of Rights, but he would have none of
Massachusetts-style bicameralism. He devoted major passages in his
Quatre Lettres d’un bourgeois de New-Haven to arguing for a single
assembly speaking for the nation. Condorcet looked to frequent elec-
tions and declarations of rights to protect the rights of the people.
When the National Assembly debated the first French Constitution,
the Abbé Sieyès and others who favored unicameralism declared that
France, with its legacy of royal power and aristocratic influence, could
not run the risks of draining off popular rule into a second chamber
and the executive. It was Sieyès, not Mounier, who carried the day.
The era of modern constitutions begins, in many ways, with the events
in France and America. The Americans drew, of course, upon their Brit-
ish heritage (for example, the teachings of Magna Carta and the English
Bill of Rights) and, more generally, on the insights of the Enlightenment
(especially the ideas of John Locke and of the Scottish Enlightenment).
But, in shaping their foundations, they gave distinctive shape to constitu-
tional government, including such linchpins as separation of powers,
federalism, and judicial review. The French took a different path. Both
in America and France, much was made of the importance of protect-
ing rights. Even in the formulation of rights, however, there were
meaningful differences, such as the French emphasis on fraternity and
social rights. More striking were the divergences as to the structure of
government. France preferred a single legislative assembly, federalism
was hardly considered, and judges would not enjoy the independence
conferred by Article III of the United States Constitution.
Events in France ran an increasingly radical course after 1789. If
a single assembly spoke for the people’s will, then opposition to that
assembly’s policies became treason, a path to the guillotine. Montes-
quieu, in his L’Esprit des Lois, had argued that government should
be shaped according to the character and needs of a particular nation
or people. Rousseau, famous for his theory of the general will, also
instructed, as in his Considerations on the Government of Poland, that
constitutions and public policy should reinforce a nation’s character.
Already in the debates in Paris in 1791 one can see the rising force of
nationalism and romanticism, views given even more vigorous play in
the writings of German polemicists like Herder and Savigny. Both in
France and America in the eighteenth century, Enlightenment notions
created much common ground on both sides of the Atlantic—what
Condorcet called a dedication to the “common core of human happi-
ness.” But as the French and the Americans turned to deciding how
best to defend those rights—and thus what government should look
like—history, tradition, social conditions, and political realities in the
two countries underscored the limits on the extent to which constitu-
tional ideas can travel easily from one place to another.
Th e Revo lu ti ons of 18 48
When the French debated their first constitution, the American expe-
rience was still in its infancy. Half a century later, when the revolutions
of 1848 swept the face of Europe, Europeans could now look to the
fruits of actual constitutional government in the United States. Where

the debates of 1791 in France turned heavily on lessons drawn, or
rejected, from American state constitutions, reformers in 1848 could
now talk about the larger American constitutional experience, espe-
cially that under the Federal Constitution.
After a provisional government was formed in France in 1848,
voters elected representatives to an assembly whose task it was both
to govern and to write a constitution. The American minister in
France, Richard Rush, recognized the provisional government even
before getting formal approval from Washington—a move that made
a positive impression in France. At home, Americans held rallies and
passed resolutions approving France’s revolution. This enthusiasm
was widely reported in France, strengthening the Franco-American
bond and heightening French awareness of the example offered by
constitutional government in the United States. In May 1848, a
French newspaper declared, “The United States alone present the
example of republican, democratic institutions applied with success
on a large scale. . . . They alone have proved that a great people may
govern itself.”
Alexis de Tocqueville is widely remembered today for his rich
insights into American democracy. An admirer of many things Ameri-
can, Tocqueville nevertheless cautioned against indiscriminate bor-
rowing from another country: “We should not insist too much on
historical examples, since we ought to try something original, appro-
priate to our particular situation. . . . I do not support myself by the
constitution of the United States, a veritable work of art, of which we
can hardly borrow anything.”
France’s 1848 revolution set off a chain reaction throughout
Europe. Reformers in various lands sought such goals as democracy
and parliamentary government. In Germany, where states were only
loosely associated in the German Confederation, there were stirrings
of national identity. With the reluctant acquiescence of government
authorities, elections were held in May 1848 to a national assembly
that met at Frankfurt’s Paulskirche. A majority of the members were
academics. Especially influential in the debates were fulltime profes-
sors, many of them academic lawyers, earning the assembly the nick-
name the “Parliament of Notables.”
Even as the assembly met, American ideas of liberty and equality
had become topics of intense interest in Germany. As early as 1824,
Robert von Mohl had written a systematic treatise on the United States
Constitution. The Federalist Papers, the commentaries of Joseph Story
and Chancellor Kent, Tocqueville’s Democracy in America—all had

been translated into German.
At Frankfurt, the learned members often indulged in comparisons
to the constitutions of other countries, but references to the United
States Constitution were the most frequent. Ideas drawn from Ameri-
can constitutionalism figured in the debate on almost every subject.
One delegate even proposed that the German capital, following the
“Washington” model, be in a small town (this proposal failed). So
prominently did American practice figure in the debates that a del-
egate complained of “the foolish tendency to plant institutions from
the free states in North America into German soil.”
Two issues were notably central to the German deliberations at
Paulskirche: federalism and the judiciary. Historically, Germany had
a tradition of federal arrangements. Even so, German constitutional-
ists looked to the American federal system for inspiration. The result
was a blend of German and American ideas. The German National
Assembly followed American precedent in fashioning federal legisla-
tive powers, but the delegates invented their own concept of federal
executive power.
American ideas proved especially influential when the Paulskirche
assembly turned to molding the judicial branch. Carl Mittermaier,
Heidelberg’s eminent constitutional scholar, called the United States
Supreme Court the “highest decoration” of the United States Consti-
tution. Emphasizing the need to create a judicial tribunal able to deal
with the inevitable indeterminacy of a constitution, Mittermaier said,
“Read the American Constitution, in the usual bad translations, and
compare it to the living Constitution. . . . It owes its vitality, its vigor
. . . to the Supreme Court. I ask you, Gentlemen, to turn to the expe-
rience of America. . . . Let us follow the American example, and we
shall harvest the most splendid fruits.” The German National Assem-
bly created a federal court, the Reichsgericht, and endowed it with the
power of constitutional review, the better to ensure the supremacy of
the Constitution over ordinary laws and regulations.
The Paulskirche Constitution never in fact went into effect. Con-
servative forces in Prussia, Austria, and Bavaria were able to prevent its
being ratified in those states. In Germany, as in other parts of Europe,
the revolutionary impulses of 1848 receded in the face of more pow-
erful proponents of the old order. Nevertheless, the legacy of 1848
remained powerful in later years. There is no doubt that the Paul-
skirche Constitution became the most influential document in shap-
ing future German constitutional development. A century later, when
Germans drafted the Basic Law of 1949 (today’s fundamental law in
that country), they drew heavily upon ideas and institutions found in
the Frankfurt document. Among the concepts shaped at Paulskirche
that found their way into the Basic Law of 1949 are federalism, the
constitution’s supremacy over ordinary law, constitutional review,
and the rule of law. All of these constitutional principles take German
form, of course. But they owe a debt as well to American ideas so
pervasively examined by the delegates at Paulskirche.
Amer ic a in t he Phi li ppi nes

A latecomer to the colonial enterprise, the United States acquired the
Philippines and Puerto Rico as a result of the Spanish-American War.
Whether the United States ought to be in the business of acquiring
new territories was the subject of sharp debate. Expansionists argued
that grand strategy and commerce justified America’s acquisition of
territory. Some people also proclaimed religious or moral motivations.
Senator Albert Beveridge declared that “American law, American
order, American civilization, and the American flag will plant them-
selves on shore hitherto bloody and benighted.” God, he said, “has
marked us as his chosen people, henceforth to lead in the regeneration
of the world.” The New York Times invoked Americans’ moral duty to
help Filipinos achieve “order and a stable government.” By contrast,
antiimperialists argued that imposing government on another people
was antithetical to American constitutionalism. Their ranks included
William Jennings Bryan and William James.
President William McKinley proclaimed American policy to be
“benevolent assimilation,” substituting justice for arbitrary rule.
He distinguished between America’s objectives and the exploitation
of colonies by European powers. Filipino leaders, especially Emilio
Aguinaldo, could not see the difference. They had expected that,
after defeating Spain, the United States would grant the Philippines
independence. When that did not happen, insurgents waged a bitter,
bloody, but ultimately unsuccessful guerilla war.
After a period of military government, a commission headed
by William Howard Taft (the future president) undertook steps
toward Americanization of the Philippines. Calling the Filipinos
“our little brown brothers,” Taft said that the United States should
“hold the islands indefinitely, until the people shall show them-
selves fit for self-government,” a process that would take at least
a generation. Americanization plans had three main components:
(1) guided participation in self-government, (2) the establishment of
a system of public education, and (3) the transfer to the Philippines

of American jurisprudence.
The first election of the Philippine Assembly took place in 1907.
Although the franchise was limited to adult males who were either
literate or property owners, this election was an important step toward
democratic government. Legislative power was qualified, however, by
the Governor-General’s power to veto bills.
Creating a general system of public schools was another American
priority. Civics lessons in schools taught about local government, elec-
tions, citizenship, and respect for law. Textbooks promoted American
values of hard work, honesty, and independent thinking.
The transfer of American jurisprudence included the rewriting of
laws and codes of procedure to mirror American laws. Considering
the judiciary of the Spanish era to have been venal, Taft imported
American judges to show Filipinos “what Anglo-Saxon justice
means.” American case law became binding or persuasive; the Philip-
pine Supreme Court held that Congress’ grant of rights and liberties
to Filipinos automatically carried with it American jurisprudence on
those rights.
In 1934, the Tydings-McDuffie Act authorized the Philippines
legislature to organize an election of delegates to a constitutional
convention. The act put limits on what the convention could do; the
resulting constitution must be “republican” in form, it must contain
a bill of rights, it required approval by the American president, and it
must be ratified by the Filipino people in referendum. After ten years,
the United States would recognize the Philippines’ independence.
When the 1934 convention deliberated a constitution for the Phil-
ippines, various sources were in play. The document’s principal draft-
ers thought that history, customs, and usage made the Philippines
more like Latin America than the United States. Other constitutional
traditions, especially those of Spain, were mentioned. But the Ameri-
can model seems to have been the most influential. The drafters pro-
vided for a presidential system rather than the parliamentary model
so familiar in Europe, for constitutional supremacy rather than par-
liamentary hegemony, and for judicial review of legislation. Among
provisions drawn from systems other than the American model were
requiring citizens to render military or civil services, renouncing war,
and recognizing the state’s duty to aid parents.
The Philippines Constitution was in operation from 1935 onward,
except for the period of Japanese occupation. In 1946, the United
States formally transferred sovereignty to the Philippines.
Wo o drow Wils on and M ak i ng

th e Wo r l d S af e for Democ racy
Woodrow Wilson aimed, as he put it, to “make the world safe for
democracy.” In a campaign speech in 1912—well before the outbreak
of World War I—Wilson saw the United States as a moral beacon.
“We are chosen,” he said, “to show the way to the nations of the
world how they shall walk in the paths of liberty.” Wilson was no
stranger to an understanding of constitutions and constitutionalism.
At Princeton, he had taught and written extensively about constitu-
tional law. Later, when the United States was drawn into the world
war, Wilson had strong ideas about postwar constitutionalism, but
he did not think that other countries’ constitutions had to follow the
American model.
When it came to Wilson’s hopes for the postwar world, he focused
on self-determination and on free elections for constituent assem-
bles that would determine states’ forms of government. During the
war, Wilson gave a number of widely publicized speeches promoting
democracy. Many people, both in the United States and abroad, were
inspired by his idealism. Wilson did not want to interfere unduly in
other countries’ internal affairs. Even so, politicians and leaders in
other countries may have thought democracy was more necessary for
Wilson’s support than it actually was.
Wilson’s thinking combined elements of both democracy and con-
stitutionalism. He saw a modern constitutional state as having four
essential elements: (1) representation of the people, (2) administra-
tion subject to the law, (3) an independent judiciary, and (4) a com-
plete statement of rights. When World War I brought the collapse of
the great European empires, the newly emergent Central and East-
ern European states that became democratic conformed in general to
Wilson’s benchmarks. In doing so, however, they did not follow the
American constitutional model. No country in that region adopted
an American-style presidential system, strict separation of powers, or a
judiciary with powers on a par with those of the legislature and execu-
tive. The general pattern was a parliamentary system heavily-influenced
by France. European constitutions did not achieve the status of funda-
mental law associated with the United States Constitution. In fact, a
European constitution was rather like ordinary legislation, amendable
by the legislature without ratification by the people.
The birth of Czechoslovakia is an interesting study in how the archi-
tects of a new nation thought their enterprise should take into account
American institutions and the views of Americans themselves. Thomas

Masaryk, widely viewed as the father of postwar Czechoslovakia, spent
the latter part of the war in the United States, where he became the
leader of the American Czech community. Masaryk thought it essen-
tial to woo Wilson and the American public through speeches and
other communications, typically emphasizing democratic themes. In
June 1918, the Czechoslovak National Council issued the Pittsburgh
Declaration, drafted by Masaryk with the help of Americans. Partly
an effort by Czechs and Slovaks (whose aims were not identical) to
allocate powers in a new state, the document was also a statement of
democratic principles.
In the fall of 1918, on behalf of the National Council, Masaryk
issued the Declaration of Independence. This manifesto was unques-
tionably intended to sway American opinion. In his memoirs, Masaryk
said that the Declaration “was cast in a form calculated to remind
the Americans of their own Declaration of Independence.” Masaryk’s
ploy worked. Having at an earlier time been willing to stop short of
the breakup of the Austro-Hungarian Empire, Wilson did come out
for an independent Czechoslovakia. As Wilson told Masaryk, he had
been moved by the Czechoslovak Declaration.
The needs of propaganda aside, Masaryk’s admiration for Ameri-
can ideas was authentic. He had extensive knowledge of American
literature, and he felt that there were parallels between social condi-
tions in Czechoslovakia and the United States. For example, neither
country had an aristocratic or military tradition. Given Masaryk’s
time in America and his active solicitation of American support for
his country’s independence, one might expect him to nudge the
drafters of Czechoslovakia’s first Constitution in the direction of the
American model. There is some debate over the extent of his actual
influence on the making of that constitution. Whatever that role, the
structure of government established in Czechoslovakia looked more
French than American. The legislature, for instance, even had the
same nomenclature as in France—a National Assembly, composed of
a Senate and Chamber of Deputies. The drafters in Prague did not
mimic the French model in every respect, but the Czechoslovak Con-
stitution owed more to Europe than to America. Masaryk and his
allies thought it critical to appeal to American sentiments in giving life
to the new Czechoslovakia, but when it came to the practical business
of fashioning their fundamental institutions, these Central Europeans
were, after all, still Europeans.
M ac Arth u r a nd the C onsti tuti on of Japan

As the war in the Pacific approached its end, the Potsdam Declara-
tion, issued in July 1945, called for Japan’s unconditional surrender.
Furthermore, the statement required Japan to establish a democratic
government with respect for human rights. The Allies expressed their
intention to withdraw their occupying forces from Japan once a “peace-
fully inclined and responsible government” had been established as a
result of the “freely expressed will of the Japanese people.”
In August 1945, Japan surrendered. In contrast to Germany, where
no government survived the war, Japan had a government that con-
tinued to exist, although under Allied rule. Accepting Japan’s sur-
render, General Douglas MacArthur drew inspiration from President
Lincoln’s Second Inaugural Address—to go forward “without mal-
ice.” In October, MacArthur suggested that the Japanese draft a new
constitution to replace the existing document, which had been drafted
in 1885 and based in part on the old Prussian Constitution. The Japa-
nese government appointed a committee, headed by Minister of State
Joji Matsumoto, to undertake the task. When a draft of the Japanese
revision was leaked to the press, MacArthur realized that, left to their
own course, the Japanese saw little reason to make substantial changes
in the old constitution.
MacArthur felt the need to act quickly. He was concerned, in par-
ticular, that as time passed the Russians would move to assert greater
influence over affairs in Japan, an influence that MacArthur could
only see as pernicious. The American authorities, he decided, would
have to draft a constitution themselves. MacArthur assigned the job to
his military government team. Working under MacArthur’s insistence
on early action, they produced a draft in a week. In February 1946,
General Courtney Whitney presented the American draft to the Japa-
nese. They were stunned. The Japanese had expected the Americans
to comment on the Japanese draft, not to produce a new one. MacAr-
thur was not, however, to be dissuaded, and ultimately the Japanese
yielded. The Japanese Constitution received the parliament’s formal
approval, and it was promulgated in 1946, to take effect in 1947.
The American influence on the Japanese Constitution is unmis-
takable. First, as to the emperor, MacArthur had seen the value of
retaining him as a symbol of the nation, but the Constitution states
that his power derives from the people—an obvious departure from
Japanese tradition. Second, the most famous provision of the Consti-
tution is Article 9, in which Japan renounces war—a policy flowing
directly from American wishes. Third, Japan’s Constitution now states
fundamental rights, such as those affecting criminal procedure. It is

interesting that the Constitution has rights not found in the American
Constitution, including academic freedom, a decent standard of liv-
ing, education, and rights of labor. Many of these rights would sound
familiar to any student of the New Deal, and they reflect, in part,
the ideas of members of the American drafting team. Fourth, the
Americans wanted a stronger judiciary. But recalling how the United
Supreme Court had resisted the New Deal, they were cautious about
judicial power. Lest Japan, too, be encumbered with something like
America’s “Nine Old Men,” the Japanese Constitution requires that
judges retire at age 70. Fifth, Japan’s due process clause protects life
and liberty, but not property. It is obvious that the drafters wanted
to avoid Japanese courts’ use of substantive due process to frustrate
social and economic legislation as American courts had done in the
early days of the twentieth century.
One might have expected that, once the American occupation
ended, the Japanese would overhaul their Constitution, producing
a document with fewer foreign fingerprints. They have not. Indeed,
in the sixty years since the Constitution became effective, there have
been no amendments. One reason surely is the fact that, first, dur-
ing the Cold War, and more recently, with the rise of China and the
threat of North Korea, the Japanese have not been anxious to invite
unnecessary criticism. Furthermore, it seems fair to say that, whatever
the origins of their Constitution, the Japanese have produced a con-
stitutional system that, in actual practice, has been domesticated. For
example, the Japanese Supreme Court has rarely invoked its power
to strike down acts of the legislative branch. In recent years, there
has been rising debate over Article 9 and the limits it imposes on
Japan having armed forces. Whatever happens next, the adoption of
the Japanese Constitution remains a remarkable example of the direct
hand of a foreign power, in time of military occupation, in the making
of a durable constitution.
H ow C o nstitutional Ideas Travel

In this chapter, I have recorded a few selected constitutional
moments—instances in which the American constitutional experience
has been used to frame constitution making in other countries. Some-
time the transfer of ideas has been voluntary, other times not. In some
instances, Americans have initiated the transfer, in other cases peo-
ple abroad have sought to canvass American practices for their com-
parative value. I could tell yet other stories—of constitution making
in Latin America in the age of Bolivar, of Germany’s drafting of the

Basic Law of 1949, and of the shaping of constitutional democracy in
post–Soviet Central and Eastern Europe, to mention only a few exam-
ples. A review of the accounts I have given suggests the remarkable
array of ways in which the constitutional experience of one country
can be brought into play when people in other places make their own
constitutions. Among those modes of transference, we may include
the following:
1. Admiration for a nation’s ideals or experience. The ideals expressed

by Americans during their Revolutionary era were widely admired
in France even before revolution broke out in that country. When
the French undertook the writing of their first constitution, the
experience under the American state constitutions was closely stud-
ied and examined. Half a century later, in the age of liberal revolu-
tion in Europe, the drafters of the 1848 constitutions in France and
Germany looked closely at practice and experience in the United
States as they debated issues such as bicameralism, federalism, and
judicial review.
2. Admiration for influential individuals. Benjamin Franklin seemed,
to many in France, to epitomize American virtues. His successor,
Thomas Jefferson, drew influential Frenchmen, such as the Marquis
de Lafayette, to his drawing room to pass along American ideas on
such issues as fundamental rights and religious liberty. Many years
later, Woodrow Wilson quickened the democratic impulse in aspir-
ing nations after World War I.
3. Colonialism. Colonial powers commonly care little about preparing
colonized peoples for eventual self-government; the Portuguese
experience in Mozambique and Angola is but one illustration.
Yet American policy toward the Philippines, however paternalis-
tic it may seem to a modern observer, tells a fascinating story of
the effort to plant constitutional democracy and its institutions in
preparation for a nation’s eventual independence.
4. Military defeat or occupation. Intuitively, one might suppose that a
defeated country would harbor only resentment toward the victor,
making constitutional transference unlikely. The American military
government’s drafting of a constitution for Japan offers evidence
that even defeat can be the occasion for one country’s constitu-
tional ideas to take root even in a significantly different culture.
The Germans who drafted that country’s Basic Law of 1949 oper-
ated more freely than did the Japanese, but even there American
ideas had some influence, partly because Allied policy could not be
ignored altogether, and partly through the legacy of Paulskirche.
5. Political or economic calculations. States, especially those newly cre-
ated or those emerging from a subservient status, may well embark
on constitution making with a view to attracting the goodwill or
support of other countries. Thomas Masaryk’s adroit use of Ameri-
can ideals to win support for Czechoslovak independence is a case
in point. After the collapse of communism in 1989, the newly free
states of Central and Eastern Europe consciously shaped constitu-
tions, laws, and institutions along the lines of Western Europe in
order to prove that they were worthy of being part of the family
of Europe. Their hope, in particular, was to be admitted to such
regional arrangements as the European Union, a goal now realized
through much of the region (the most recent EU members being
Bulgaria and Romania).
6. Conformity to international documents and norms. In Jefferson’s
day, Enlightenment ideas on such subjects as rights furnished com-
mon discourse among constitution makers on both sides of the
Atlantic. In more recent times, especially after World War II, inter-
national norms play a powerful role in the making of constitutions.
Especially is this true in the realm of rights. In this chapter, I have
not sought to tell the story of the influence of such international
documents as United Nations covenants or regional norms such as
those found in the European Convention on Human Rights. But
the influence of such norms, especially in the drafting of bills of
rights, is inescapable.
7. Technical advice. Lawyers, judges, professors, and others often
travel from established democracies to advise emerging democra-
cies in drafting constitutions, as well as in strengthening the institu-
tions of constitutional democracy, such as parliaments, independent
courts, and civil society. The American Bar Association’s Central
European and Eurasian Law Initiative has performed an invaluable
service in helping postcommunist countries to think through the
challenges of transition from an authoritarian to a democratic era.
The Council of Europe’s Venice Commission has played a similar
role in a range of countries.
Th e P l ac e o f the A mer i c an Ex per i ence

To what extent can those who shape laws and institutions in one coun-
try draw from the experience of other countries? You would have to
be simpleminded indeed to suppose that you could travel to another

country with a copy of your own constitution or laws in hand to serve
as a template for drafters there. Americans in particular, proud as they
tend to be of their country’s rich heritage of constitutional democ-
racy, must beware the temptation to hold out their own country’s
experience as surely right for another people. At the same time, one
should resist the argument that everything is ultimately relative, that
each country’s own history, tradition, culture, and politics preclude
constitutional borrowing.
If it is the American constitutional experience that is offered by
way of model, the limits on the value of that model are evident. They
include the following:
1. The Constitution’s text, although amended and interpreted, is

nevertheless a document written in the eighteenth century, under
circumstances quite different from those of modern times.
2. The United States Constitution is consciously incomplete, in the
sense that its drafters assumed the existence and vital role of the
states and their constitutions.
3. There is a familiar argument about American “exceptionalism,” the
notion that, tracing back to the earliest settlements, the American
experience has been exceptional and that it has produced a consti-
tutional culture that cannot be replicated elsewhere.
4. Much of America’s constitutional experience is distilled in Supreme
Court cases and in usage—experience that is not readily captured
or distilled.
5. Other models have risen to claim the attention of drafters. A pow-
erful example is Germany’s Basic Law, whose influence is readily
apparent in Central and Eastern Europe.
6. International and regional norms and documents provide influen-
tial points of reference, for example, providing notions of rights
(such as positive or affirmative rights) that go beyond the American
Bill of Rights.
These caveats notwithstanding, the importance of the American

constitutional experience lies not so much in the use of the United
States Constitution as an explicit model, but in what it represents.
If there were a genealogical chart of constitutionalism in the mod-
ern world, the American Constitution would be a respected ances-
tor. What Magna Carta is to Anglo-American constitutionalism, the
United States is to world constitutionalism.
Among the principles embedded in American constitutionalism are

limited government, separation of powers, checks and balances, rec-
ognition of national and local interests, constitutional supremacy over
ordinary laws, and protection of individual rights. One would hope to
find these principles, in some form, in any constitutional system aspir-
ing to liberal constitutional democracy. Insofar as these principles have
been nurtured by the American constitutional experience, then to that
extent one can say that what Americans have done has been part of a
constitutional conversation in places, and eras, and cultures far remote
from the world of Thomas Jefferson and his contemporaries.
Pa rt I I
The Wall of Separation and

Wester n Perspectives
Chapter 5
S ecul ar ism, Liberalism, and

the Problem of Tolerance
Adam B. Seligman
I f I understand it aright, the challenge we face is to explore if the sep-

aration of church and state is a precondition for freedom and democ-
racy. If understood in strictly legal terms, the short answer I imagine
would be, of course not. There are myriad of European countries,
from England to Norway and Sweden to Spain, where there has, in
this century, been no such strict legal separation of church and state—
in Great Britain, the queen is, after all, the titular head of the Anglican
Church. In all these countries there exists a multitude of modes of
church-state accommodation not defined in terms of strict separation,
and yet one would be hard pushed to claim these countries lacked
freedom or democracy. Portugal, Spain, Italy, and Germany have,
after all, concordats between state and church. Finland, Denmark, and
England all have state churches (while Greece has a constitutionally
defined “dominant religion”).1 Something else is thus clearly at stake
and needs to be unpacked.
What I propose to do in this chapter is to contextualize the question
of church-state relations in a set of broader themes, and in so doing,
attempt to expand our sensitivities to some aspects of this question.
I will therefore place the issue of church-state relations within three
An earlier version of this chapter appeared in Theoria: A Journal for Social and Political
Theory 115 (April 2008), 17–31. It appears here with the kind permission of Berghahn
Journals.
94 Adam B. Seligman
different contexts: (1) the broader context of religion and secular-

ism, (2) the more specific context of early American Congregational
Puritanism and its relations to freedom of conscience, and (3) the
more sociological issue of the separation of private from public realms
and the implication of this separation on how we deal with identity
and difference in the contemporary world. I proceed in this task with
no small degree of trepidation, given the expertise among those who
have addressed each of these issues in the past. There are many who
have spent their lives studying any one of the three themes I suggest
here, and so if there is anything I can add, it can only be in their juxta-
position and the dim light that may shed on the issue of church-state
separation in its relation to democracy.
I think it is probably most useful to begin with the recognition
that what we mean by the separation of church and state, or perhaps
what we should mean, is of a somewhat different order than the dif-
ference we posit between the religious and secular dimensions of life.
The separation of church and state refers to the political order or
political dimensions of existence. It need not reflect any overarching
claims to the sacred, the profane, or the relations between them in
the lives of the men and women who make up any particular society.
This is a commonplace distinction, to be sure—but one that is often
lost sight of in today’s debates, certainly in the United States, but
elsewhere as well.
In fact, I would like to go one step further and claim that we tend
to use the concepts of secularity or secular culture or secularization as
if these were objective, universal, and value-free concepts that can be
used to characterize aspects of shared social life that are not religious.
Religion and religious too are used as universal, objective, and value-
free concepts. I believe this approach is fundamentally flawed. I think
rather that both religion and secularism are concepts that developed
in a very particular and Christian context, and can be used, helpfully,
to describe aspects and periods in the development of Christian civili-
zation—but they do not actually serve us well when we come to dis-
cuss, analyze, and understand other traditional civilizations or other
civilizations within which tradition is changing and being renegoti-
ated.2 What, for example, is a secular Jew? What of a Jew who observes
none of the ritual commandments, goes to synagogue only on Yom
Kippur, and does not otherwise maintain any traditional practices? Is
he secular, or partially religious, or what? How do we characterize
China and 1.3 billion Chinese? Ingelhart has called China the most
secular country in the world. But when we recognize the proliferation
of spirit cults and other forms of worship, we come to realize that it is
Secularism, Liberalism, and the Problem of Tolerance 95
not secular in any usual sense of the term. More important perhaps,
what of Islam? What of the individual or community whose obser-
vance of traditional commandments are partial or almost nonexistent?
What of the Muslim who eats during Ramadan—but only in private,
in hiding, away from communal eyes? Is he secular or hypocritical?
What of the Muslim who does not eat during Ramadan but drinks
wine occasionally? What of those communities in Central Asia that
celebrate the Id by drinking vodka? Are these people secularists or
sinners or ignorant? Or are they as so many others are, engaged in the
never-ending movements, interpretation, and transformation of their
tradition that is continually being negotiated and negotiated anew by
communities and individuals over the course of time?
I would in fact claim that secularism is a very particular moment
in the Christian process of negotiation of its own tradition—as was
the Protestant Reformation and as is the phenomenon of Christian
fundamentalism. All are particular moments in the way the concrete
practice of tradition mediates, transforms, and negotiates the tradi-
tion of practices that define any civilizational endeavor. That a par-
ticular moment of this negotiation in Christianity is understood in
terms of secularism has much to do with the privileging of belief over
practice, of faith over works, and of innerlichkeit over external prac-
tice that has been part of Christianity from its origins (as evinced in
its rejection of Jewish Law and its unique allegorical way of reading
and interpreting Scripture) and that received particular emphasis dur-
ing the Protestant Reformation of the sixteenth century. Secularism
as unbelief is thus the complement of tradition understood primarily
in terms of belief rather than practice. The consequent use—I would
say, misuse, of this term—to characterize other civilizational endeav-
ors, the Jewish, the Islamic, the Hindu, etc., is simply the spoils of
war as it were: a consequent of the power differentials between the
Christian, Jewish, Islamic, Indian, and Chinese civilizations. Indeed,
as I have already hinted at, I would much prefer to replace the dichot-
omy of religion/secular with that of tradition of practices/practice
of tradition—because it is a more structural and less particularistic,
historicist, and Whiggish a way of conceptualizing what is usually
understood as the dichotomy between religious and secular individu-
als, cultures, and communities.
I preface my much more concrete remarks with these broader
methodological reflections because they bear great relevance to the
general theme of this book, which deals with one aspect of what is
often seen as relevant to the debate over religion and secularism, and
that is the separation of church and state.
96 Adam B. Seligman
Earlier, I mentioned Europe as providing examples of freedom and

democracy without the type of strict separation of church and state
that we can find in the USA. Europe, too, we recall, is the “secular”
exception in a world that is overwhelmingly “religious.” Or, in the
terms I am offering here, European civilization is one where tradi-
tional practices have been most abandoned and rejected, a fact that
can be ascertained by visiting any of the churches of Europe and cal-
culating the average of age of those in attendance on any given Sun-
day. Moreover, this rejection of tradition is intimately tied up with the
overwhelming terms of collective identity. In fact, both phenomena
may well be related. The Peace of Westphalia and the concept of cuius
regio eius religio may be central here. Europe, which was Christian,
became rather a continent of nation-states, and in different ways tradi-
tional practices pertaining to the sacred were subsumed within a new
set of practices organized around national identities.
Somewhat unique to these new identities that emerged following
the Protestant Reformation of the sixteenth century was what was to
become the United States of America.
For, while the United States may well be, as S. M. Lipset claimed,
the “first new nation,” it is also a nation where certain sectarian Prot-
estant assumptions on self and society were allowed to develop rela-
tively free of the effects of the Counter-Reformation and, in general,
free of the need to take into consideration the existence of the Catho-
lic Church.3 It was then, in my earlier terms, a particular moment
in the endless negotiation of the Christian tradition. Critical to this
moment, however, was that the grand debate (often violent, to be
sure) over the terms of Christian tradition that defined the Protestant
Reformation and the Counter-Reformation in Continental Europe—
and which eventuated in the development of secular polities and soci-
eties there—was, to a great extent, ignored in the New World and
played but a minor role in the later history of the United States. There
was no ultramontane party in nineteenth-century American politics,
nor was there a state church as in Sweden, nor was there a religious
requirement for full citizenship rights over the course of the nine-
teenth century.
All of which does not mean that the United States was, or is, secu-
lar in the cultural sense. Rather, it means that it was secular in the
classical, circumscribed, and medieval usage of the term—referring
to that area of public life that is outside sacerdotal regulation and
ecclesiastical jurisdiction. Secularism, then, in the USA must thus be
understood as a constitutional principle rather than as a moral posi-
tion, a principle embodied in that very separation that is the theme
of this book. This distinction, between secularism as moral position

and as constitutional principle, is crucial to keep in mind when we
come to understand the role of religion in public life, within different
social contexts.
What the Protestant sectaries brought to—and imposed on—the
new polity they established in the New World was a particular set of
religious orientations that—in the course of time—not only permitted
but even encouraged the establishment of freedom of conscience as a
political right, however much such rights were in fact clearly restricted
within the Congregational settlements of Massachusetts Bay over
much of the seventeenth century (though, of course, they did flourish
in Rhode Island under Roger Williams). For the idea of freedom of
conscience was not conceived of as rooted in anything other than cer-
tain fundamental aspects of Protestant belief (recall the unique char-
acter of these sectarian Protestants was precisely in their rejection of
“works,” that is, their rejection of all traditions of practice and almost
total replacement by the “workings of grace in the soul.” That the
very institutionalization of the settlement and later the polity would
necessitate a certain mediation of this radical position is of course also
the case).4
This freedom of conscience, which has, more recently, been
referred to as the very first “political right”—perhaps today we would
say the very first “human right”—has been of indescribable signifi-
cance almost from the beginning of Protestant settlement in North
America. In fact, and at least within the context of American history,
it illustrates just how indebted modern ideas of individual right are
to religious principles. It in fact illustrates what can be termed the
interweaving of religious and secular dimensions that came to char-
acterize the reconstruction of natural law doctrines in eighteenth-
century America.
This development was analyzed by German legal scholar and soci-
ologist George Jellinek in the nineteenth century. Already in 1895,
Jellinek compared the American Bill(s) of Rights (from different
states), the French Declaration des Droits de l’Homme et du Citoyen,
and more significantly, the English Bill of Rights of 1689, the Habeas
Corpus Act of 1679, and the 1628 Petition of Right. His conclusions
are worth quoting:
The American bills of rights do not attempt merely to set forth certain
principles for the state’s organization, but they seek above all to draw
the boundary line between state and individual. According to them the
individual is not the possessor of rights through the state, but by his
98 Adam B. Seligman
own nature he has inalienable and indefeasible rights. The English laws
know nothing of this. They do not wish to recognize an eternal, natural
right, but one inherited from their fathers, “the old, undoubted rights
of the English people.5
As Jellinek sees it, English law offers no autonomous grounding of

individual rights in a set of natural principles but grounds them solely
in tradition, in “the laws and statutes of this realm.”6 Jellinek, how-
ever, looked to the defining traits of Congregational Puritanism to
explain how the “inherited rights and liberties, as well as the privileges
of organization, which had been granted the colonists by the English
kings” became transformed in the New World to “rights which spring
not from man but from God and Nature.”7
The very success of natural law doctrine—based on self-sufficient
individuals endowed with reason—as the foundation of the American
political community rested on the synthesis of these ideas with the
tradition of the Holy Commonwealth of visible saints, the transcen-
dent subject of Protestant belief. Not only (transcendental) reason
but also (transcendent) grace, redefined in the inner-worldly terms
of individual conscience, continued throughout the eighteenth cen-
tury to define the terms of individual and social existence in the civil
polity. It was the very continuity of this religious heritage that made
the positing of a political community of individuals—united by com-
pacts—possible in eighteenth-century America and beyond. And so
Jellinek concluded,
In the closest connection with the great religious political movement

out of which the American democracy was born, there arose the convic-
tion that there exists a right not conferred upon the citizen but inherent
in man, that acts of conscience and expressions of religious conviction
stand inviolable over against the state as the exercise of a higher right.
This right so long suppressed is not “inheritance,” is nothing handed
down from their fathers, as the rights and liberties of Magna Charta
and of the other English enactments—not the State but the Gospel pro-
claimed it. 8
As Jellinek realized, individual rights in America were not derived

solely from positive law, but had acquired a transcendent justification
unique in the modern world.
Now there is an interesting story to be told—and one that Jellinek
glosses over—on just how “grace” and “the Gospel” proclaim these
rights. The particular forms of theological controversy that became
dominant by the early eighteenth century in New England saw the
political need for a moral community based on natural law where

religion was both central but separate from state power.9 As we all
know from the vast amount of published material on the events lead-
ing up the American Revolution, the issues of compacts, natural law,
and the constitution of a political community, as a community of
virtue, were debated at great length.
Within these debates Locke’s philosophy of natural law played
a central role—arguably more central than in his home country or
indeed anywhere else.10 And Locke, we recall, presented a rational
account of both the existence of natural law as well as its binding
obligation. The binding obligation to follow natural law, especially as
interpreted by such Puritan divines as Elisha Williams, was achieved
through man’s rational and uncoerced acceptance of the dictates of
the Christian religion.11 Natural rights came to be understood as being
derived from the fundamental duties imposed on man by natural law
to maintain himself as a moral agent. Morality (the most meaningful
form of agency) was predicated on freedom, especially on freedom of
the will.
Freedom of the will, liberty, was therefore central to the whole con-
struct of natural rights, for only a will and a conscience free of coercion
could rationally ascertain the truths of natural law. At the same time,
however, religion was central to the political community for it pro-
vided the necessary realm of virtue wherein which such reason could
develop. If, in the seventeenth century, the religious community pro-
vided the realm for the workings of grace—that arena wherein the will
of a man could be “quickened” to accept the undeserved workings of
grace—then in the eighteenth century that same community was seen
to provide the arena wherein his reason could be so “quickened” to
accept the obligations of natural law.
Hence we find George Washington, in his farewell address in 1796
asserting,12
Of all the disposition and habits which lead to political prosperity Reli-
gion and morality are indispensable supports. A volume could not trace
all their connections with private and public felicity. Let it simply be
asked where is the security for property, for reputation, for life, if the
sense of religious obligation desert the Oaths, which are the instru-
ments of investigation in Courts of Justice? And let us with caution
indulge the supposition, that morality can be maintained without reli-
gion. Whatever may be conceded to the influence of refined education
on the minds of peculiar structure—reason and experience both forbid
us to expect that National morality can prevail in exclusion of religious
principle.
100 Adam B. Seligman
Thomas Jefferson, we recall, authored not only the Virginia Stat-

ute for Religious Freedom, but also the Bill for Punishing Disturbers of
Religious Worship and Sabbath Breakers. It was, recalling Washington,
a “National morality”—that is to say, the very community of virtue
whose birth America was to presage—that was at stake in the mainte-
nance of both religion and religious freedom.13
So much then for the background to Jellinek’s important insight
into the nature of rights and most centrally of the right to freedom
of conscience in the United States. Rights, in this vision, did not
stand apart from some overarching vision of the good—as they do in
contemporary liberal political theory—but as part and parcel of such
a vision.
We must moreover recall that the while the separation of church
and state is one way that the freedom of conscience has been insti-
tutionalized within the body politic, it is not the only mechanism of
such institutionalization; Article 9 of the European Charter of Human
Rights and Article 10 of the Charter of Nice provide similar mecha-
nisms.14 Indeed, I wonder if we could go so far as to state that the
fundamental value, the aforementioned good, to be preserved by the
separation of church and state is not so much separation for its own
state, but as a guarantor of freedom of conscience; that fundamental
and first “political right” that is really what is at stake in preserving
both freedom and democracy.
There is of course another reading that we can offer, drawing more
heavily on The Federalist Papers, where the separation of church and
state is to be understood in terms of preventing the politics of fac-
tions and managing the politics of interest. Democratic regimes, after
all, exist in an abiding tension between a politics of interest—push-
ing citizens to focus on what divides them—and a politics of con-
sent—pushing citizens to affirm what unites them. (This tension, I
hasten to add, is not a characteristic of all political and social systems
to the same extent. Totalitarian systems, fascist regimes, communist
societies, theocracies, and, on the other side of the coin, empires do
not betray the same tensions; the former can abide a lesser amount of
difference, the latter, a much greater amount, than democracies. Even
within democracies there are various differences between what have
been termed liberal and republican versions, where the former allow
a much greater institutional recognition of difference than the latter.)
Needless to say, the Founding Fathers of the United States recognized
this tension and worked out mechanisms to accommodate it. The wall
of separation between church and state in America is predicated pre-
cisely on the Founders’ recognition that it is better that the people’s
politics be divided by their different material interests (which would

then play out in the political sphere of the legislature) than by their
religious differences (which could have potentially ruinous effects on
social and political life). If current practice in places like the Balkans,
the Middle East, the Indian Subcontinent, and within parts of the
Republican Party in the United States are any guide, people like James
Madison were stupendously correct in this assessment.
Indeed, it may just be that the problem of difference, and of dealing
with difference—different interests, identities, sacred traditions, and
other forms of practice within one body politic organized on demo-
cratic principles—is the real challenge, and the separation of church
and state is just one mechanism that accommodates one form of such
difference in one particular way in one particular place, and it is uncer-
tain if it can or should be generalized beyond that place—or, for that
matter, that it address problems rooted in other forms of difference.
(Again, think of the Church of England and its constitutive role in the
definition of English identity, even today, where the responsibilities of
a parish priest include those to members of other sacred traditions.)
One of the chief means for dealing with difference, not just reli-
gious difference, but all substantive difference, has been the legal
separation of public and private realms that defined a realm of privacy,
understood as what we may term “principled indifference,” where
inquiries into the constitutive nature of the individual, agency, and
action are not countenanced.
In the social realm, indifference comes in many forms, most often as
what may be termed the “aesthetization of difference” (differences are
a matter of tastes, not morals, and as there is no accounting for tastes,
no real need to abide someone’s difference is called for, only rather a
need to recognize each individual’s “right” to his own opinion). The
aesthetization of difference is moreover often accompanied by a trivi-
alization of difference. Here the differences or the arenas of difference
are not deemed important enough to merit a principled response.
Your rather poor taste in neckties is not something that demands of
me any sort of reaction, though I find them both offensive and in bad
taste. Precisely because these differences are conceived of as a matter
of taste (aesthetics) and of no great significance (trivial), there is no
need to engage with them within our shared, public space.
These moves, of making difference a matter of aesthetics or trivial-
izing it, are of course ways to avoid having to address them. By trivi-
alizing what is different, one makes a claim to the essential similarity
or sameness of the nontrivial aspects of selfhood and shared mean-
ing. What makes us the same (as Jews, Episcopalians, Armenians, or
radical feminists) is much more essential to our definitions of who

we are than what divides us (your horrendous taste in bathroom fix-
tures). This is a form of denying difference rather than engaging with
it. And we do it all the time; it is of the very stuff of our social life. As
we know all too well, it also has its limits (in, for example, issues over
gay rights, abortion, and so on).
In a certain sense, and as most often practiced in daily life, such
denial of difference (relegating it to the aesthetic or trivial) is itself
a form of indifference toward what is other and different. By fram-
ing our difference from alter’s position or action in terms of tastes or
the trivial, we are not forced to engage with it and can maintain an
attitude of indifference. Thus, I may find your religious beliefs fool-
ish and your sexual appetites objectionable, but neither are illegal or
hurtful to others. They do not affect me in my relations to you (as,
say, a member of the same university department) and so, in the long
run, they are a matter of indifference to me. They are your private
concern. Not surprisingly, that freedom of conscience that we dis-
cussed earlier—and that, as we have seen, was in fact the freedom of
religion—went hand in hand with this privatization.
The privatization of religion and of conscience was, of course, part
of a larger politics, perhaps even a political theology that has become
the hallmark of a liberal American vision of modernity. And of course
here precisely is the rub. For accepting these principles essentially
means accepting either a liberal/secular version of selfhood and soci-
ety that is not shared across the globe and across human civilizations,
or an explicitly Protestant vision of human existence in the world—
which is certainly not shared. Please recall here my earlier strictures
about our very categories of religion and secularism. They are Chris-
tian, I would even say, Protestant categories, and we must be very
careful about presenting them as universal human experiences.
I hasten to add that the problems of dealing with constitutive dif-
ference in the public sphere are, of course, not unique to the United
States. Nor is the “liberal” or perhaps liberal-individualist solution
unique to that social formation, but in fact defines modern societies
in one form or another, though with important variations. Recall, for
example, the classical enlightenment response to “the Jewish Ques-
tion” given by Count Stanislav de Clermont-Tonnerre in 1789: “We
must refuse everything to the Jew as a nation and accord everything to
the Jew as an individual.”15 This became perhaps the paradigm state-
ment of attitudes toward the other, understood solely as individual
entities rather than as members of corporate groups. Article I of the
Declaration of the Rights of Man and of the Citizen (August 26, 1789)
of the French National Assembly states, “All men are born and remain
free and equal in rights: social distinctions can not be found but on
common utility.” This is a total reconfiguration of the meaning of
individual identity along the lines of utility functions rather than what
may be termed “constituted selves.”
What this has meant within the public sphere is that the boundar-
ies between individuals are, in these societies, parsed into razor-thin
edges and individuals interact not as members of groups, but as bear-
ers of rights (citizen rights, social rights, human rights, and so on).
Group identities—those very foci of empathy and trust—have been,
in the public sphere, replaced by individual identities, and the problem
of tolerance of difference has been replaced by the legal recognition
and entitlement of rights. Modern societies have elided the problem
of difference, obviated the necessity to be tolerant of difference. They
have replaced tolerance of group difference with the legal formula of
individual rights.
In both Europe and the United States, however, a fundamental
problem remains. For rights do not provide recognition. And recog-
nition—as political philosophers from Adam Ferguson to G. W. H.
Hegel on down to our own contemporaries have reminded us—is
the core of modern politics.16 After all, our demands for recognition
and respect are not so much in those areas where we are the same as
everyone else (that realm defined by rights), but precisely in those
areas where we are unique and different (that is, in our specific and
particularistic group identities). To claim that we are all fundamentally
the same and to ensure that status in rights is no doubt a crucial pro-
vision for common life. But it does not at all address our demand to
be approached and recognized in our separate and unique existence
and identity.
It is thus not at all surprising that new and old forms of group-
based identity arise to again make vocal and public demands for rec-
ognition. And this in fact is the social significance of such holidays as
Kwanzaa, or of a rabbi in Boston lighting a Hanukkah menorah on
Boston Common, or a French rabbi lighting one on the Champs de
Mars, for that matter. All betray the demand for recognition, for a
recovering of one’s identity. And demanding public recognition for it.
Not surprisingly, these demands are most often framed religiously, as
in the case of debates over prayer in school or placing a monument to
the Ten Commandments in front an Alabama courthouse. It is in fact
not surprising that in contemporary America the struggle over iden-
tity, community, class, and status (i.e., over recognition) often takes
the form of a struggle over religious symbols.
This state of affairs is as true in Europe as in the United States.

The French ruling over the head scarf, the debates over the pream-
ble to the European constitution and whether it should refer to a
shared Christian heritage, or the Dutch debate on whether to out-
law full facial veils in public—all point to this phenomenon.17 Further
examples abound. In October 2000, for example, the local Catholic
inhabitants of Lodi, in northern Italy, desecrated a site upon which a
mosque was to be built by pouring pig urine all around it.18 The idea
was that by rendering the site impure they would be able to stop the
mosque from being built. One immediately associates this story with
the construction of a Muslim graveyard opposite the Dung Gate of
Jerusalem to prevent the Jewish Messiah from appearing, as he would
be of the priestly class and so unable to pass through a graveyard. Only
this is the twenty-first century, of course. Anti-immigrant sentiment
often takes a religious form. It is similar to the failure of the bishop of
Bologna to count non-Catholic births in the city’s natality rate, or the
mayor of Rouato issuing a municipal ordinance (almost immediately
overturned in court) on November 24, 2000, forbidding non-Chris-
tians from approaching within fifteen meters of a church. These are
but a few additional examples of the type of dynamic I am referring
to.19 The severe anti-Muslim sentiments expressed in parts of Europe,
not only by skinheads, neo-Nazis, and supporters of Le Pen, but also
by much more respectable figures, are frightening examples of this
same dynamic. Nor am I referring here to the late Oriana Fallaci—but
I direct your attention to a recent book, by Jacques Ellul, entitled
Islam et judeo-christianisme, published posthumously with a preface
by the very distinguished French philosopher Alain Besançon, which
reads like a medieval anti-Semitic tract, except here it is the Muslims
and their “God” (whatever that can mean) who are presented as with-
out love and so beyond the pale of shared humanness.20 (Recall as
well that the term “Judeo-Christian tradition” is of recent coinage; it
appeared only following the Second World War and the genocide of
European Jewry. No one discussed the “Judeo-Christian tradition”
at the First Vatican Council or during the Dreyfus affair in France.21)
As we know well, this problem of recognition (and lack thereof) is no
minor issue at the fringes of the political arena—it is at the very center
of our social life, making demands that cannot be met by the privatiza-
tion of those things for which we demand recognition!
Rather than this elision of difference, it is perhaps the age-old vir-
tue of tolerance that we should advocate. For tolerance of constitu-
tive differences between people addresses the type of relations that
exist on the thick boundary lines of identity—and identity is always a

group identity of some sort. It is this group identity that requires rec-
ognition, even as it distinguishes, separates, and questions the overall
terms of societal belonging. Much of the economic and political thrust
of the modern world order has, however, been about replacing such
group identities with individual ones, replacing tolerance with rights
and replacing a relatively small number of what Ernest Gellner once
termed “multistranded relationships” with an almost infinite number
of single-stranded ones.22 In the process, tolerance goes from being a
community-centered act to an individual, almost psychological attri-
bute or personal characteristic. However, when threatened by new
terms of collective membership, immigration, demographic change,
religious proselytism, ethnic consciousness, and a newly assertive gen-
der politics, such psychological attributes seem not to be up to their
historical tasks.
There is, of course, nothing wrong (practically or morally) with
“solving” the problem of constitutive difference by removing the
social conditions that make tolerance necessary. On the contrary,
when it is possible, it seems to work well. But my feeling is that the
conditions that defined the “high modernity” of the Western Euro-
pean and, especially, North Atlantic nation-state—and which allowed
this particular solution or, rather, elision of the problem—are cur-
rently changing. A return to group-based identities and to religious
commitments, both Christian and non-Christian, in many parts of the
world, the growth of transnational identities predicated on religion,
ethnicity and nationhood not dependent on statehood are all calling
into question the type of individual identities that stood at the core of
the revolutionary eighteenth-century idea of citizenship, especially as
it developed in the United States.
What we witness today is in fact a huge withdrawal of differ-
ent groups into themselves, a closing of ranks against the outside
world and a reticence to interact with those who are truly differ-
ent. The recent trend among certain churches in the American West
and Southwest to enclose banks, preschools, gyms, and coffee shops
within the precincts of the church is an interesting case in point. Cer-
tain rather uncritical sociologists have seen these developments as
indications of the growing worldliness of the churches. But surely the
lesson is much the opposite. Rather than forcing the churched into
the world, it allows their withdrawal from the world. One no longer
needs to stand on line in the bank with the funny dark-skinned fellow
with the turban, or have coffee with the veiled woman, or work out
with something other than church music playing on the loud speak-
ers. One can in fact separate from the world and attempt to constitute
one’s own community of grace. You see, I was very serious with my
remarks at the beginning when I claimed that secularism was just
one moment in the ever-unfolding dynamic of Christian civilization,
rather than its terminus ad quem.
It was, after all, this very separating impulse that informed the
first Puritan migration and settlement in the New World, and its fail-
ure in the second half of the seventeenth century that led to the
important acceptance of the principles of toleration and freedom of
conscience that we have discussed above. Its reemergence not only
among Christians, but among other communities as well, raises seri-
ous questions as to the vitality of those very freedoms that we have
come to accept as given and immutable aspects of the political order.
The growth of human rights as what Michael Ignatieff called a form
of “idolatry,” that is, as a “trump” in every argument, will not in
itself counteract this development, which, in turn, will leave rights
themselves as nothing but formal enactments of positive law, bereft
of the very legitimizing aura that made of them beacons of freedom
in the past 200 years.23
The maintenance of pluralistic forms of society and a constitutive
tolerance of difference, as well as a tolerance of constitutive difference,
may well, in the end, turn on our ability to reengage with diverse
sacred traditions and eschew the “trump” of individual rights. This
is no doubt a strange and counterintuitive call that some may see as
conservative, if not reactionary, in its implications. In truth, however,
it is a call not to return to the Christian sources of rights—as perhaps
the Vatican may well wish to do—but rather to bring about a total
reconceptualization of the categories within which we view the prob-
lems of religion and secularism and its cognate problems of freedom
of conscience, individual rights, and collective responsibilities. What
is called for is not a simple return to Christian sources, but rather a
reengagement with traditions, including those well beyond the Chris-
tian, in order to go beyond the current impasse of post-Christian (i.e.,
secular) political categories. Such an engagement may in fact bring us
to very new ways of understanding how a constitutional secularism
could come together with a heteronymous morality, in a manner not
rooted in the workings of individual conscience. This, as I see it, is the
only real way of beginning to address the problems of religion and
secularism in today’s global order.
To the extent that this is the case we will have to reinvent a lan-
guage of tolerance not predicted on liberal and modernist ideas of self
and of interaction between selves. To do so we will, I believe, need
have recourse to more traditional foundations for tolerance of differ-
ence, predicated on different ideas of the self and of the nature of the
moral actor, which only a reengagement with our multiple traditions
can provide.
Notes
1. Silvio Ferrari, “The European Pattern of Church and State Relations,” in
Comparative Law 24 (2007): 1–24.
2. On the category religion, see Wilfred Cantwell Smith, The Meaning and
End of Religion (Minneapolis: Fortress Press, 1990); on Christian use of
religion, see Daniel Boyarin, Border Lines: The Partition of Judaeo-Chris-
tianity (Philadelphia, University of Pennsylvania Press, 2005).
3. S. M. Lipset, The First New Nation (London: Heineman, 1963).
4. E. Brooks Holifield, “The Renaissance of Sacramental Piety in Colonial
New England,” William and Mary Quarterly 29 (1972), 33–48; E. B.
Holifield, The Covenant Sealed: The Development of Puritan Sacramental
Theology in Old and New England, 1570–1720 (New Haven, CT: Yale
University Press, 1974); Adam Seligman, “Inner-worldly Individualism
and the Institutionalization of Puritanism in Late Seventeenth Century
New England,” British Journal of Sociology 41, no. 4 (December 1990),
537–57.
5. Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A
Contribution to Modern Constitutional History (Westport, CT: Hyperion
Press, 1979), 48.
6. Jellinek, Declaration of the Rights of Man, 53.
7. Ibid., 80.
8. Ibid., 74–75.
9. See, for example, Donald Lutz, The Origins of American Constitutional-
ism (Baton Rouge: Louisiana State University Press, 1988).
10. See Thomas Pangle, The Spirit of Modern Republicanism: The Moral
Vision of the American Founders and the Philosophy of Locke (Chicago:
University of Chicago Press, 1988); Steven Dworetz, The Unvarnished
Doctrine: Locke, Liberalism, and the American Revolution (Durham, NC:
Duke University Press, 1990); Michael Zuckert, Natural Rights and the
New Republicanism (Princeton, NJ: Princeton University Press, 1994).
11. Elisha Williams, The Essential Rights and Liberties of Protestants (Bos-
ton, 1744), reprinted in Political Sermons of the American Founding Era
1730–1805, 2d ed. 2 vols., ed. Ellis Sandoz (Indianapolis: Liberty Fund,
1988).
12. Transcript of the Final Manuscript of Washington’s Farewell Address,

September 19, 1796, homepage.mac.com/dmhart/Quotes/Washing-
ton/FarewellAddress/ParallelEdition/index.html, pg. 19 (accessed,
July 13, 2008).
13. This argument has been worked out in detail in Stephen Dawson, A
Facsimile of Grace: The Protestant Basis for Order in the Early American
Republic (PhD diss., Boston University, 2004).
14. Ferrari, “The European Pattern of Church State Relations.”
15. On the relevance of this attitude toward contemporary issues in France,
see Michael Shurki, “Decolonialization and the Renewal of French Juda-
ism: Reflections on the Contemporary French Jewish Scene,” Jewish
Social Studies 6, no. 2 (2000), 156–76.
16. See, for example, Charles Taylor, Multiculturalism and the Politics of
Recognition (Princeton, NJ: Princeton University Press, 1992).
17. New York Times, Nov. 18, 2006, A3.
18. La Republica, “Lodi, la lega alla guara santa,” Oct. 15, 2000.
19. Il Giorno, “Il sindaco Alla larga dalle chiese infedeli,” Nov. 24, 2000.
20. Jacques Ellul, Islam et judeo-christianisme (Paris: Presses Universitaires
de France, 2004).
21. Ernest Gellner, Plough, Sword, and Book: The Structure of Human History
(Chicago: Chicago University Press, 1988).
22. Gellner, Plough, Sword, and Book, 44.
23. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ:
Princeton University Press, 2001).
Chapter 6
A mer i ca’s Secul ar State and the

U nsecul ar State of Eu rope
John T. S. Madeley
T here are two ways of reading the January 2007 controversy in the
United Kingdom about whether Catholic adoption agencies should
be exempted from antidiscrimination legislation that requires them to
treat applications for adoption from same-sex partners no less favor-
ably than those from heterosexual married couples.1 One way is to
take it as an indication of how far liberal-secular political correctness
is being imposed on those who conscientiously dissent from certain
applications of it—to the point of forcing those that maintain their
dissent out of business or public service. Alternatively, the controversy
can be read as a reminder of how broadly and deeply the legal systems
even of consolidated liberal democracies have until now been infused
with ideas and principles that derive from long-established traditions
of ethical thought rooted in religion. This is less a matter of whether
glasses are half empty or half full and more a matter of whether they
are either almost completely empty or still substantially full.
The relevance of such questions to still-ongoing debates about sec-
ularization is patent, but they serve also to reflect a distinctive pecu-
liarity about the terms of those debates, at least as they have been
conducted among sociologists. Since Weber, secularization has been
predominantly taken to concern long-term (and in that sense at least
secular) developments in the area of culture and society. Trends toward
cultural and/or social secularization, associated with—so the claim
110 John T. S. Madeley
goes—progressively declining levels of individual religious adherence,

belief, and observance are readily understood, however intense the
disagreements about the extent to which such trends are taking place
and how they might reliably be identified, measured, and assessed.
Equally, at the collective level the notion of secularization can rela-
tively unproblematically be applied to whole cultures and societies or
parts of them. In this context a special focus is placed by sociologists of
religion on the secularization of churches or other religious organiza-
tions in a relatively straightforward manner, readily applicable to cases
where there is judged to be a dilution of, or a turning away from, stan-
dards once firmly rooted in the religious principles of a particular tra-
dition. Thus, in the case of the U.K.’s Catholic adoption agencies, the
acceptance of the new antidiscrimination rule, were it to occur, would
readily be seen as a secularizing shift. One aspect of secularization that
is routinely ignored in the sociological debates, however—and one
that should, arguably, occupy a central place—is the secularization of
the state, the institutional locus (in the modern world at least) where
the requirements of authoritative rules are worked out, maintained,
executed, and over time reformed.
It is not that the action of political actors or even state authorities is
routinely ignored; indeed, in some distinguished contributions from,
for example, David Martin (1978) and Jose- Casanova (1994) such
action and its consequences are given great emphasis, as the interplay
between political exigencies and religious claims is shown to be nego-
tiated in different ways in different contexts.2 Rather, the problem is
that the state itself is not seen as a subject of secularization because
of the assumption, borrowed from long-standing habits of thought
among West European (especially Roman Catholic) Christians, that
the state is, ever has been, and must always be essentially secular—and
therefore not itself subject to secularizing trends or pressures.3 Nor
have political scientists concerned themselves much with state sec-
ularization, despite their particular concern with the structures and
processes of state institutions as they have developed across time. In
his illuminating discussion of the “double dualist system of classifica-
tion” that was instinct to premodern Catholic Christianity, Jose- Casa-
nova locates the state firmly: it belongs to and inhabits “this world”
rather than the “other [heavenly] world.” While the church as a divine
institution uniquely bridges both worlds and represents an enclave
of religion within “this world,” the state remains unambiguously—
indeed, doubly—secular: “Politically, there was the transcendental
City of God (Heavenly Kingdom), its sacramental representation here
on earth by the Church (the Papal Kingdom), and the City of Man
America’s Secular State and the Unsecular State of Europe 111
proper (the Holy Roman Empire and all the Christian Kingdoms).”4
Leaving aside what nowadays will be seen as esoteric, even arcane,
references to the Heavenly and Papal kingdoms, the concluding refer-
ence to the Holy Roman Empire and the Christian kingdoms is par-
ticularly striking since the use of those very labels implies a claim that
they, at least adjectivally, were in some way religious—if also, doubt-
less, in some way secular. Charlemagne’s creation of the Holy Roman
Empire can, for example, be seen on one account at least to represent
a heroic attempt to lend earthly reality to a patristic vision of Christian
mankind by casting its institutions as a single, fully integrated—almost
organic—whole. Paul Johnson (1976), for example, judges the Car-
olingian experiment in the following terms: “Never before or since
has any human society come closer to operating as a unity, wholly
committed to a perfectionist programme of conduct. Never again
was Christianity to attempt so comprehensively to realize itself as a
human institution, as well as a divine one.”5 In this Charlemagne can
of course be represented as the carrier of the old Germanic idea of
sacral kingship that owed as much to pagan as to Christian tradition,
and it would appear that in the ninth century of the Common Era,
both were combined in a distinctive religio-political amalgam.6
Whether or not one agrees with these assessments of the Carolin-
gian experiment, mention of it serves to raise the general point that
the instrumentalities of state power and authority can be—and indeed
often have been—utilized for religious ends in Christian Europe as
much as in other parts of the world. In the case of European Christi-
anity during the Middle Ages, monarchs were routinely consecrated at
their coronations by high church officials, usually archbishops or bish-
ops, or even—as in the case of Charlemagne himself—by the pope.
Church involvement in coronations was transparently intended, inter
alia, to ensure that the crowned monarchs would support and assist
the church in its divine mission. While the Catholic Church perenni-
ally attempted to maintain a distinction between the separate spheres
of a temporal regnum and a spiritual sacerdotium, and to assert its
sole jurisdiction in the latter, it also upheld the duty of the temporal
authorities to aid the church in serving its religious ends, however
indirectly. As Christians, of course the holders of temporal author-
ity stood under the spiritual authority and discipline of the papacy.
Badie and Birnbaum (1983) argue that it was the struggle to assert
these claims that “marked the real beginnings of the separation of
the spiritual from the temporal, reflecting the Church’s claim to full
autonomy of action in the spiritual domain and its denial of the right
of princes and emperors to meddle in its affairs.”7 But the papacy’s
claim that a clear distinction be maintained between “the power of

the pope or auctoritas, which proceeds directly from Christ, and the
power of the king or potestas, which is limited to the administration of
earthly affairs,”8 should be seen more as a bid to establish precedence
than an attempt to achieve separation; it maintained the insistence
that the administration of earthly affairs be conducted so as to assist
the church. And at times, for example, between the papal reigns of
Gregory VII (1073–85), the pope traditionally associated with this
attempted Papal Revolution, and Innocent III (1198–1216), when
the authority of emperors, kings, and feudal magnates were periodi-
cally reduced by fratricidal conflicts, the popes were able occasionally
to make a reality of these claims.9
Nor did the Reformation, despite the seismic changes that it
wrought in church-state relations in the sixteenth century, put an end
to the principle that the temporal authorities had religious responsi-
bilities, in addition to their duty of care for the security and material
welfare of their populations. Indeed, on one view, the Reformation
can be seen in the countries of Northern Europe where it became
fully institutionalized as greatly extending the scope of the religious
duties of all holders of public office. Max Weber’s striking image of
the breaking of the monastery walls at the Reformation, the removal
of the barrier between the closed world of the religious orders and
the outside world, can be interpreted in diametrically opposite ways.
For Casanova, it represented the destruction of the religious enclave
and the triumph of the secular over the religious order within “this
world”: “If before, it was the religious realm which appeared to be
the all-encompassing reality, within which the secular realm found its
proper place, now the secular sphere will be the all-encompassing real-
ity, to which the religious sphere will have to adapt.”10 The alternative
view is that the removal of the barriers between ostensibly religious
and secular spaces had the effect of releasing religion from its previous
confines, thereby allowing it to flow out and permeate the wider soci-
ety so that, for example, the idea of God-given vocations no longer
applied only to church functions but to all licit roles in society—to
ploughmen and princes as much as to priests and prelates. This change
was all the more significant since it coincided with and contributed to
(not least by the transfer of church property and wealth to the coffers
of the temporal authorities) the emergence of the modern state. The
state takeover of church wealth involved its secularization in the nar-
row legalistic sense, but while much of this patrimony was diverted to
secular purposes, authority within the institutional church itself as it
continued to exist under state auspices involved a sacralization of the
state. During the ensuing absolutist phase, this new dispensation was
of course theorized and justified in one form or another of the divine
right of kings.
The emergent pattern of the modern state was from its beginnings
in sixteenth-century Europe a confessional institution committed
to the upholding and, where opportunity offered, the extending of
the geographical reach of particular states’ favored religious tradi-
tions. The birth of the modern state system as a society of states,
which is conventionally dated from the 1648 Peace of Westphalia,
did require the signatory territorial authorities thenceforth to desist
from attempts by diplomacy or war forcibly to change the religious
adherence of target populations, but this only hobbled the actions
in the international arena of what remained in all essentials until the
late eighteenth-century confessional states. Indeed, the Westphalian
treaties buttressed the prohibition against religious wars precisely by
insisting on the sovereign right of the state authorities of a particular
territory to impose a particular confession on their subject popula-
tions on the basis of the cuius regio eius religio rule (literally, whose
the region, to him the religion), inherited from the 1555 Treaty of
Augsburg and now, finally, set in stone. In fact, from 1648 on, the
recognition of the exclusive authority of state authorities in matters of
religion led to a new and decisive phase in the consolidation of church
settlements aimed at enforcing conformity to the locally established
religion and penalizing or expelling those who refused to conform.11
This process of the “confessionalization” (in German, Konfessional-
isierung) of populations continued for long after 1648, as was signi-
fied by such famous (or notorious) episodes as the Revocation of the
Edict of Nantes in France in 1685 or the expulsion of many thousands
of Protestants from the archbishopric of Salzburg in the 1720s. These
episodes were only the most dramatic symptoms of the widespread
deployment of systems of penal law that undergirded the religious
monopolies of the established churches under state management and
control across Europe, north, south, east, and west.
The effect of the 1648 Peace and the driving forward of confes-
sionalization projects was to freeze the confessional borders of Europe
in a manner that has survived in large part to the present day. The
confessional map of Europe continued well into the twentieth century
to be dominated by the monoconfessional blocs of Roman Catho-
lic, Protestant, and Eastern Orthodox in the southern, northern, and
eastern parts of Europe separated from each other by belts of multi-
confessional territories, where the principal traditions abutted on each
other.12 Nor have secularizing trends of declining levels of religious
belief and observance led to the erasure of the rooted patterns of con-
fessional identity that still underlay these distributions at the start of
the twenty-first century; in Grace Davie’s terms, habits of belong-
ing survive even where traditions of believing and practice decay.13
As Table 6.1 shows, thirty-eight out of Europe’s forty-six national
territories as of the year 2000 (83 percent) continue to exhibit sin-
gle-confession majorities, and thirty-three of these (72 percent) have
supermajorities (i.e., populations in which more than two-thirds share
a single confessional identity). Thirteen countries even have over 90
percent of their population sharing a single identity. However crude,
these figures can be taken to demonstrate that, despite the massive
economic, social, and demographic changes that have occurred over
the last two centuries, the early modern confessional state continues
to throw a long shadow across contemporary Europe. Of course the
phenomenon of confessional majoritarianism in so many parts of
Europe does not imply that these majorities represent cohesive pha-
lanxes of religious belief and opinion. Under current conditions even
the most solid confessional identity majorities—such as the Roman
Catholic, Protestant, and Orthodox majorities in, respectively, Spain,
Iceland, and Greece—are internally divided along many dimensions
of belief, practice, and ethical viewpoint. In addition to these inter-
nal divisions and differences there is also in most European countries
a growing penumbra of alternative traditions, some of them long-
standing and others, such as those of the New Religious Movements
(NRMs), novel and/or often exotic in their provenance (see the frac-
tionalization scores in Table 6.1 for one indication of existing degrees
of religious pluralism).
While the broad outlines of Europe’s confessional map have
changed little since the end of the religious wars in the mid-seven-
teenth century, patterns of church-state relations have of course been
transformed, as the penal and discriminatory laws and regulations
that underwrote individual state church monopolies were progres-
sively relaxed, religious landscapes became more varied and pluralis-
tic, and developing liberal-democratic states responded to pressures
to extend their remit into ever-wider areas of life. For upholders of
a range of secularization theories, these developments have typically
been taken as confirming instances of an ongoing general process of
secularization, however differently or distinctively articulated that
may have developed under the force of local circumstances. As with
other predictive theories, however, secularization in some of its less
Table 6.1 The long shadow of the confessional state in Europe
Fractionalization
Confessional majoritarianism by tradition and country index
% Catholic Protestant Orthodox Muslim Other

91– Turkey: 0.0561 Turkey
100 99.8
Spain: Iceland: Cypriot, 0.1472 Spain
99.0 99.0 Turkish:* 0.2027 Iceland
99.0
Luxembourg: 0.1778
97.0 Luxembourg
Portugal: 0.2346 Portugal
97.0
Norway: 0.1889 Norway
95.17
Azerbaijan: 0.2860
94.7 Azerbaijan
Greece: 93.0 0.1639 Greece
Poland: 92.2 0.1485 Poland
Ireland: 92.0 0.2753 Iceland
Malta: 91.0 Armenia: 0.1045 Malta
91.9 0.3761 Armenia
81– Andorra: Finland: 0.2012 Andorra
90 89.0 89.0 0.2609 Finland
Croatia: 0.2120 Croatia
88.5
Denmark: 0.2279 Denmark
86.27
Lithuania: 0.3048 Lithuania
85.0
Italy: 84.95 0.3048 Italy
Sweden: 0.4594 Sweden
84.0
Bulgaria: 0.4656 Bulgaria
82.0
Belgium: 0.3380 Belgium
80.9
71– Liechtenstein: 0.4296
80 80.0 Liechtenstein
Austria: 78.0 Cypriot, 0.4184 Austria
Greek:* 78.0
Romania: 0.5060 Romania
77.0
Table 6.1 (continued )
Fractionalization

Slovenia: 0.2958 Slovenia
76.0
Georgia: 75.0 0.6392 Georgia
61– Belarus: 70.0 0.6816 Belarus
70 Moldova: 0.7287 Moldova
70.0
France: 69.6 0.4921 France
Hungary: 0.5677 Hungary
67.5
Slovakia: 67.0 0.5104 Slovakia
Albania: 0.7597 Albania
65.0
51– Yugoslavia:*
60 60.0
FYROM:* 59.3
United 0.7499 United
Kingdom: Kingdom
53.0
Russia: 51.7 0.6617 Russia
41– Switzerland:1 0.6460
50 46.1 Switzerland
Bosnia- 0.5777 Bosnia-
Herze- Herzegovina
govina:2
44.0
31– Czech 0.7057 Czech
40 Republic:3 Republic
40.0 [0.7057]
Estonia:4 0.8022 Estonia
36.5
Germany:5 0.7230
35.7 Germany
Netherlands:6 0.7662
34.5 Netherlands
Latvia:7 0.7969 Latvia
34.0
Cases 17 6 11 4 0
with
more
than
50%
Table 6.1 (continued )

Fractionalization

Cases 3 1 0 1 2
with
50%
or
less
Total 20 7 11 5 2
cases
*No fractionalization index available.

1. Switzerland, other confessional groups: Protestant 40 percent; Other 8.9 percent.
2. Bosnia-Herzegovina, other confessional groups: Orthodox 31 percent; Catholic 15 percent;
Protestant 4 percent.
3. Czech Republic, other confessional groups: Other 38.6 percent; Protestant 4 percent; Orthodox
2 percent.
4. Estonia, other confessional groups: Protestant 17.2 percent; Orthodox 16.5 percent; Catholic
0.6 percent.
5. Germany, other confessional groups: Catholic 33.7 percent; Other 26.4 percent.
6. Netherlands: Protestant 26.9 percent; Other 12.9 percent.
7. Latvia: Orthodox 22.8 percent; Protestant 22.2 percent; Catholic 19.7 percent.
Source: D. Barrett et al., eds., World Christian Encyclopedia: A Comparative Study of Churches and
Religions in the Modern World AD 1900–2000, 2nd ed. (New York: Oxford University Press, 2001).
Herfindahl fractionalization scores calculated from same source leaving out groups that count for less
than one percent of the population.
subtle formulations implies the existence of some end-state to which

the process tends, typically an ever-increasing secularity in culture,
society, economy, and (even, on occasion) the state. Insofar as this
implies the progressive elimination of the religious factor from these
different spheres, it is open to the criticism that it ignores or discounts
the existence of countervailing trends. In some areas—such as the
much-touted contemporary resurgence of the religious factor in poli-
tics, for example—the existence of these countertrends seems to be
well attested.14 A rather different critique stresses the implausibility
of the vision of a complete disappearance of the religious factor from
the public realm, outside, that is, of the increasingly narrow area of
the private realm. Debates around these issues can be seen to revolve
in part around conceptual considerations—what counts as religious,
what secular—and in part around the interpretation of relevant evi-
dence. The very notion of the secular state provides a striking case
in point. For some, the use of the qualifying term secular is seen as
redundant because the state is regarded as essentially secular by defini-
tion, while from an alternative point of view the term only provides
a useful antonym to the concept of the religious state, and its careful
use actually suggests the existence of a continuum between (very)
secular and (very) religious states across a full range of intermediate
positions.15 As to arguments about relevant evidence, “secularization-
ists” might point to the record of the retreat from confessionalism just
alluded to as one of the trends that accompanied the emergence of the
modern (secular) state proprie dictu, implying that before it becomes
secular a particular state cannot be considered modern. The sugges-
tion put forward here is that from a more advantageous viewpoint, the
survival of many of the marks of the early modern confessional state
can be seen to amount to more than mere anachronistic relics. This
vantage point also allows a more perspicuous overview of ongoing
changes in the field of state-religion relations; it reveals that, contrary
to secularizationists’ expectations, there has been a reverse trend in
recent decades toward a reengagement of state authorities with the
religious sphere across a range of public policy fronts.
The Secul ar State: An Amer ican Invention

A millennium separates Charlemagne’s Aix-la-Chapelle in the 780s
from the Founding Fathers of the United States of America forgath-
ered in Philadelphia in the 1780s. More significantly in the present
context, it separates the launching of two contrasting but equally bold
experiments in statecraft: that of Charlemagne as the would-be cre-
ator of an integralist Christian commonwealth and that of the Found-
ing Fathers of the American Republic who can be seen as the authors
of the world’s first secular state. Keith Ward (2000) claims that the
birthday of the secular state, properly so called, can be precisely dated,
somewhat shockingly, not to the French Revolution, with its notori-
ously anticlerical, if not always antireligious antecedents, but to the
political arrangements thrown up by the American Revolution shortly
before. “In 1789 the American Revolution introduced to the world
in a formal way the idea of a secular state. The first amendment to
the Constitution of the United States of America, drafted two years
later, laid down that there would be ‘no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof.’ The idea
of a secular state was born.”16 Until that point on the Eastern sea-
board of the North American continent, the norm had of course been
church establishment, as it had been elsewhere in the New World, for
example, in Latin America, as well as throughout the Old (European)
World.17 Bellah (1980) has pointed to the contrast between the many
implicit religious references in the Declaration of Independence and
their complete absence from the Constitution.18 The liberal idea as

represented by the Constitution and reinforced by the first ten amend-
ments adopted in 1790 endorsed an incipiently secular view of the
state as “a purely neutral mechanism without purposes or values. Its
sole function is to protect the rights of individuals, that is, to protect
freedom.”19 The lack of any anchorage in the constitutional order—
with which they might be deemed inconsistent—has not prevented
the growth in the U.S. polity of many marks of civil religion, although
Bellah judges these to be merely “formal and in a sense marginal,”
despite their deriving from a distinctive American republican tradi-
tion.20 For Tocqueville, with his more sanguine earlier view, the vir-
tues of the American polity rested in part on a “tacit bargain through
which religion kept out of politics, and politics did not interfere with
religion,” a bargain that American men of religion (they were almost
entirely men) understood and had kept to; their absence from the dif-
ferent branches of government had initially come as a surprise to him
in the context of what he saw as the vibrancy of American religion
until he realized that there might be a positive connection.21 For other
liberal observers of the American scene, the separation of church and
state has continued to be seen as one of the efficient secrets of its con-
stitutional structure, a virtuous arrangement worthy of emulation by
all other states. It is however one that no longer seems immune from
criticism or secure in the United States itself, while elsewhere it has
been more honored in the breach than the observance.22 Indeed, in the
fifty or so states that constitute Europe from the Atlantic to the Ural
and Caucasus mountains, the great majority of which are now more
or less consolidated liberal democracies, there is not a single country
whose arrangements match up to the strict separationist interpretation
of the Constitution that was so influential in the jurisprudence of the
U.S. Supreme Court at least between 1947 and 1981. It could even
be argued that France, to whom Alexis de Tocqueville first addressed
his study of democracy in America, has since its own eighteenth-cen-
tury great revolution provided not just a markedly different but also a
more influential model of secularism as a political project.
In France, secular radicals for a short time during the French Revo-
lution launched Europe’s first attempt to dismantle state confession-
alism (in this case the Bourbon Catholic variety) completely, taking
church property into state ownership and even attempting to abolish
Christianity altogether at one point in order to replace it with a cult of
Reason. According to Rémond (1999), “France was the [European]
country to make the first breach in the old order founded on the
principle of state religion. . . . For the first time in a European society,
belonging to a denomination would no longer be a measure of indi-

vidual rights or a condition of citizenship.”23 Although the uncoupling
of citizenship from denominational belonging was never subsequently
to be overridden in France—with the solitary brief exception of the
Vichy regime’s exclusion of the Jews in 1940—the nineteenth century
was in fact a period of partial restoration and retrenchment in church-
state relations. Starting from 1801, a Napoleonic system of multiple
establishment of recognized religions was set more or less firmly in
place for over a century, supported by arrangements for public sub-
sidy, the provision of religious education via the public school system,
and so on. Only in 1905 did the country finally institutionalize its
distinctive laicist version of the separation of church and state that
had been pioneered under very different auspices and circumstances
in the United States. Remarkably, separation was deemed consistent
with the taking into state ownership all churches built prior to 1905,
and over the succeeding hundred years a number of other deroga-
tions from strict separation were made, for example, in terms of the
reintegration in 1918 of the three eastern provinces (where the Napo-
leonic arrangements had, somewhat ironically, survived, because in
1905 they had been part of the German Reich). In addition, after the
Second World War, despite the constitutional reaffirmation that the
republic was laïque, other compromises with strict separation were
made across metropolitan France so that by the time of the recent
centenary of the Separation Act, many voices were being raised in
favor of a revision to bring the legislative framework more into line
with current practice.
Neither the American nor French form of state secularism has,
however, managed to establish itself as the model that states aspiring
to liberalize and democratize their political systems should emulate,
even though both forms have occasionally found imitators in different
parts of the world.24 Secular liberals have often held one or the other
(rarely both together) as worthy of emulation, claiming that they rep-
resent in their secularity a quality essential to political modernity. But
the American and French patterns of church-state relations failed to
gain many imitators among the builders of those modern states that
eventually emerged from the shells of the old European empires. The
American pattern, based on what Stepan (2000) calls the “twin tolera-
tions”—freedom of religion from the state and freedom of the state
from religion—remained a unique aspect of the American constitu-
tion, relying as it did as much on the support of religious forces that
were antiestablishment, as of secular liberals with their antireligious
animus.25 While in Latin America and parts of southern Europe other
secularist radicals experimented with introducing, sometimes in com-

bination, a number of features of the French and American models,
elsewhere in the West throughout the nineteenth century systems of
church establishment of various types continued to prevail, albeit pro-
gressively without the support provided by penal sanctions against
dissenters and nonconformists. More and more, legislative reforms
introduced measures first of religious toleration, then religious free-
dom, and finally, in the early twentieth century, many of the systems of
formal religious establishment were dismantled in the interest osten-
sibly of full equality among the religious and as between the religious
and the nonreligious.26 Only in Russia and Turkey did the Bolshevik
and Turkish revolutionaries around the same time emulate the radi-
cal secularism of the most extreme French revolutionaries and launch
projects aimed at the complete secularization of state and society.
Elsewhere in Europe, formal establishment continued in much of
the Protestant north, while in most Catholic countries concordats or
concordat-like agreements were eventually negotiated that guaranteed
the status and standing of the Roman Catholic Church; in almost all
parts of Europe indeed, favorable arrangements of one sort or another
were introduced for the upkeep and functioning of recognized (and
thus favored) religious institutions—arrangements that, in the United
States would in almost all cases have been ruled incompatible with
the nonestablishment norm enshrined in the First Amendment to the
Constitution.27 In a generalized sense secularity (if not secularism)
undoubtedly became a key feature of modernity in the West in ever-
wider fields of public life, including in those states that retained sig-
nificant elements of religious establishment.28 There was a progressive
realization that, especially in a context of increasing religious plural-
ism, the state was generally ill suited to exercise jurisdiction in matters
of religion and anyway had no compelling interest that called for its
close involvement except at the margin, where issues of social protec-
tion or public morality might supervene. Progressively it was con-
ceded that religion itself should be treated as a private matter beyond
the proper purview of state authorities and that freedom of religious
belief and practice should be protected as core elements of systems
of human rights. These were finally entrenched in the 1948 Univer-
sal Declaration of Human Rights and a series of other international
covenants, conventions, and treaties, such as The European Conven-
tion on Human Rights and Fundamental Freedoms (1950), which
committed signatories to uphold the principle of freedom of religion,
belief, and conscience.29 In the West, guarantees of these freedoms
were typically incorporated in constitutions and national systems of
law—in the case of Germany and France, respectively, in the Basic

Law (1949) and the Constitution of the Fifth Republic (1958), while
in Britain, which lacked (and lacks) a codified constitution, religious
freedoms had been secured by the progressive legislative removal of
measures discriminating against those of dissenting or nonconformist
religious views and practices. The emergent consensus in the West on
religious freedom was further complemented by the parallel stepwise
retreat from clerical control and oversight in the fields of education,
welfare, and the control of public morality where it had once been
powerfully entrenched, although in few cases was this retreat pressed
toward full completion. The greatly expanded role of the state in these
fields contrasted with its withdrawal from managing religion, but it
also entailed a range of contacts state officials had with religious orga-
nizations as they continued to retain an interest and presence. The
overall result was without doubt a tendency for religious organiza-
tions and institutions to be progressively marginalized—though rarely
eliminated—and for society and culture to be further secularized.
In the Soviet bloc after 1945, patterns of development were quite
different: while principles of religious freedom were formally acknowl-
edged, secularist programs and projects continued periodically to be
pressed forward by the state and party authorities with the aim of
weakening and, where possible, destroying the influence of religious
groups and institutions.30 In 1967 Albania even launched an attempt
to ban all religious practices outright. The secularist project posted
few final successes, however, and from 1990 the collapse of Soviet
communism and the disintegration of the communist bloc led to the
opening of a new era in the field of church-state relations characterized
by a combination of unprecedented levels of religious freedom on the
part of the adherents of the historically established religious traditions,
as if to compensate for the depredations of the previous regime. The
generally positive stance of the post-transition governments, however,
suggests no Jeffersonian wall of separation between church and state.
It would seem as though after the fall of the Berlin wall the time for
walls was at an end in the consolidating liberal democracies of Eastern
Europe, while in their more traditionally configured counterparts in
the Western half of the continent wall-building has only episodically
been in fashion.
A S ec ul ar Trend Away
f ro m State S ec ul ar i s m?
In 1982 David Barrett and his team first published data that, among
other things, provided a basis for the classification of all the world’s
territories in terms of the nature of state authorities’ relationships with
religious institutions and groups. The first aspect of these relation-
ships related to the de jure “state religion or philosophy” of individual
countries; that is, “how sovereign or non-sovereign states or ruling
regimes or colonial governments officially see themselves . . . in their
formal relation to religion, religions, or churches . . ., to what extent
they are formally, officially, or explicitly concerned with religion or
claim the right to intervene in religious affairs, and to what extent
they formally acknowledge or recognize or approve of religions or
churches.”31 On this basis states were coded as either Religious (most
often also with a commitment to a particular named confession), Sec-
ular, or Atheistic. The religious coding was based in part on the core
notion that is outlined in Figure 6.1.
Applying the full specification for this and the other codings to the
cases for 1980, out of thirty-five European territories listed, only five
coded as Secular in the sense that the “State is secular, promoting nei-
ther religion nor irreligion,” and nine were deemed Atheistic, meaning
that they were committed to confining or even eliminating religion.32
On the other hand, twenty-one European states or governments (60
Figure 6.1
A state should be deemed religious in some nontrivial way if it is
identified/
formally linked/
heavily involved/
joined in law
with
a religion or
religions or
churches
and its/their promotion.

percent) were found to be committed in one way or another to the

support of religion and/or religious institutions. Of these, fourteen
were associated with single confessional traditions, while Finland,
unusually, supported two (in the form of both the Lutheran and Rus-
sian Orthodox established churches). The other six were committed
to the support of a plurality of religious organizations that fell little
short of plural establishment; thus Belgium was classified as Religious
on the basis that there the state recognized and supported all of six
denominations: Catholicism, Protestantism, Judaism, Anglicanism,
Islam, and the (Greek and Russian) Orthodox Church.33 Other marks
of “state religiosity” that were evidently taken into account in coding
particular cases were more striking. In the case, for example, of the
Republic of Ireland, there is the phenomenon of what can be called
preambular religion, since the preamble to the 1937 Constitution
opens with the invocation of “the Name of the Most Holy Trinity,
from Whom is all authority and to Whom, as our final end, all actions
of both men and States must be referred.”34 Paradoxically, even some
of the states identified in 1982 as de jure Atheist, and so committed
to confining or even eliminating religion, formally acknowledged the
special standing of particular religious traditions; thus in Bulgaria the
1949 Religious Denominations Act declared, “The Bulgarian Ortho-
dox Church is the traditional faith of the Bulgarian people. It is bound
up with their history and, as such, its nature and its spirit can be con-
sidered a church of the popular democracy.”35 In this connection it is
of note that in all of the Atheist states, including the only one, Alba-
nia, that in 1980 was still officially committed to actually repressing
all religion, religious affairs were closely monitored and controlled by
agencies of the state and Communist Party in ways that seriously vio-
lated norms of both religious freedom and state-religion separation.
Formal, or de jure, rules and commitments constituted only the first
of two dimensions on which the secularity or religiosity of Europe’s
states was assessed, however. When other evidence relating to de facto
relations of support and/or control between governments and reli-
gious organisations is added and cross-tabulated with the de jure attri-
butions, a fuller picture emerges that further underlines the religious
partiality and entanglement of the state in Europe circa 1980.36 In this
fuller, two-dimensional picture not a single case of full state neutrality
is to be found in Europe as of 1980; the cell of the cross-tabulation
that combines a Secular state attribution with “state noninterference
in the affairs of religious organizations” is completely empty. The
most populated cell by far is that occupied by thirteen countries where
the state was deemed to be de jure supportive and de facto directly
supplying religious organisations with large subsidies. In the opposite

quarter of the distribution, the nine East European states are located
together, all deemed Atheistic but varying in the degree of control
exercised over religion, with Yugoslavia effectively intervening against
the politicization of religion, while Albania remained committed to its
campaign of eradication of both the majority Islamic faith and a num-
ber of Christian denominations. On these measures, then, in none of
the thirty-five European territories included in Barrett’s 1980 survey
could the state authorities be adjudged neutral.
The two decades after 1980 saw a number of remarkable changes
that affected the distributions just identified, however. The collapse of
communism and the disintegration of the Soviet Union, Yugoslavia,
and Czechoslovakia led to an increase in the number of relevant coun-
try cases from thirty-five to forty-eight (a number that would have
been higher by one had East and West Germany, against the trend,
not been reunified). Communism, with its animus against organized
religion, had been responsible for the classification of the East Euro-
pean states as Atheist in 1980 when the Cold War was still ongoing.
The shifts that occurred between then and 2000, for which the sec-
ond edition of the Barrett encyclopedia provided data, indicates by
their number and direction the effect of the removal of communist
political hegemony; almost none of the former communist territories
remained classified where they had been only twenty years before.
The exception was the rump of Yugoslavia (Serbia and Montenegro)
where the embargo on religious groups engaging in political activity
continued in 2000 to be policed by the Milosevic regime, albeit with
extreme variations as between the Serbian Orthodox Church, which
was favored, and others, such as the breakaway Montenegrin Ortho-
dox Church and Kosovan Islam, which were disfavored or positively
persecuted. All the other successor states of the communist bloc were
deemed to have shifted from the Atheistic to the Secular (ten cases) or
Religious classification (eleven cases).37
The other significant trend observed between 1980 and 2000 in
Eastern Europe was reflected by the shift toward providing support
for historically established religious traditions. Almost everywhere
change has been in the direction of dismantling controls on religion
and increasing the availability of state assistance, whether in the form
of funds for the rebuilding of cathedrals, as in Russia, or the wide-
spread use of national taxation systems to funnel resources to recog-
nized denominations. It is notable that four states (Estonia, Lithuania,
Slovakia, and the Czech Republic) were now shown as combining a
Secular de jure status while de facto adopting a stance of complete
state noninterference in church matters, the “state religious neutral-

ity” combination, which in 1980 no European state was found to
match. The trend was only a modest one, however, affecting as it did
only four out of forty-eight territories as of 2000; as already noted,
more countries moved from the Atheist category to the Religious
than to the Secular, and in the case of the one significant shift among
the Western European states, that of Sweden from the Religious to
the Secular category, the degree of de facto separation introduced was
distinctly modest.38 While Sweden was moving toward a form of dis-
establishment, moreover, in Romania voices were being raised to have
the Romanian Orthodox Church declared the national church. And
around the same time, in 1997, new Russian legislation, which had
been prepared in consultation with the leadership of the Orthodox
Church, cut back on the religious freedoms that an exemplary Free-
dom of Conscience law had introduced in 1990.39
Ferrar i’s Model of a Developing

E qu il ibr ium i n Europe
In 1999 canon lawyer Silvio Ferrari argued that despite all the varia-
tions in church-state relations to be found in Western Europe, there
actually existed a common model of relationship between the state
and religious faiths. The “outmoded” conventional classifications of
different patterns, he argued, obscured the existence of this common
model; three-way distinctions between separatist, concordat-based,
and national (or state) establishment systems were too much based on
the formal elements of institutional relationships and took no notice
of the “legal substance.” When attention was paid to the latter instead,
evidence of “a process of rapprochement that is going on at the very
level of legislative contents between the national laws of the various
countries of Western Europe” came to light, indicating the existence
of a common model as an emergent reality.40 There were also reasons
to believe that this model would prove sufficiently robust to serve as a
template for the recasting of church-state relations in Eastern Europe
after the fall of communism.
The model is characterized first by the common recognition of
individuals’ rights to religious liberty, something that almost all of
Europe’s fifty-odd states have signed up to in the form of various
declarations of human rights since 1948. Anomalies in the practical
recognition of religious liberty and all its entailments—such as the
existence of the constitutional ban in Greece on proselytism—were
gradually being eliminated, although novel problems in connection
with the toleration of several New Religious Movements or so-called

cults, such as the Church of Scientology or the Moonies, continued to
pose problems.41 The greatest difficulties have attached to the sets of
arrangements, which all states employ in a variety of different forms,
governing issues of recognition on the part of state authorities and
touching whether a particular group should be regarded as a bona
fide religious body. Since access to material benefits depends in most
cases on winning such recognition at one or another level of what
might be called different “hierarchies of recognition,” the issue is not
a trivial one. What in particular distinguishes the European common
model, however, is its privileging of religion: “A religious subsector is
singled out within the public sector. . . . Inside it the various collective
religious subjects (churches, denominations, and religious communi-
ties) are free to act in conditions of substantial advantage compared to
those collective subjects that are not religious. The state’s only role is
to see that the players respect the rules of the game and the boundar-
ies of the playing field.”42
The model is described as being of relatively recent provenance
while “deeply rooted in the political and legal culture of contemporary
Western Europe,” something that also connects it to the heritage of
the confessional state. Ferrari is not alone in observing this privileged
standing of religious groups in Europe, despite the continent’s repu-
tation for uniquely high levels of secularization. Rémond concludes
his historical survey of religion in European society as follows: “The
entire evolution of contemporary society has revealed the existence
of a middle sector which has considerably expanded, of the collective
private, and a mixed domain in which private initiative and interven-
tion by the authorities intermingle; religion is part of it and there-
fore has a public expression recognized to benefit from the liberties
acknowledged for all components of civil society.”43 While significant
differences of detail continue to mark distinctive national patterns
there exists, he argued, “a fairly general agreement on fundamentals
which enables one to say that today there is a way, both common to
all European peoples and original as regards the rest of the world, of
regulating religion-society relations.”44
Following both Ferrari and Rémond, the European model appears
to accord to religious groups and institutions a privileged status rela-
tive to that of nonreligious groups, thereby offending against one
of the cardinal principles of church-state separation as identified by
Robert Audi (1989).45 In this the European model is inconsistent
with the strict separationist tradition of the U.S. Supreme Court.46
American religious conservatives, such as Richard Neuhaus, complain
that religious groups and institutions in the United States continue to

be positively disadvantaged to the point of being rendered invisible
on “the public square” while in most parts of an otherwise-secular
Europe religious bodies are often accorded privileged rights of con-
sultation.47 The U.S.-Europe contrast is perhaps much less stark than
this comment suggests if the according of tax-free status in Amer-
ica to religious groups is taken into account and the prominence of
American religious campaigning organizations in the public arena is
acknowledged. The advantages afforded by “protected area” status in
Europe might also, despite its privileges, be presented as a virtual Toc-
quevillian “tacit bargain” or trade-off: the protection of secular space
from the claims of religious groups to influence the content and scope
of legislation, in exchange for the protection of religious groups and
institutions from state encroachment. As the previous reference to the
U.K. controversy over nondiscrimination against same-sex partners in
adoption makes clear, however, the terms of this bargain, if such it is,
continue to be hotly contested.
A question-begging feature of Ferrari’s model as he presents it is
that it is centered on what he sees as the secular nature of the modern
state, in French, its laïcité; “the fundamental principles of the com-
mon European model of relationships between the state and the reli-
gious communities . . . are quite rigid. . . . [They] have been summed
up in the formula ‘the secular state.’”48 It might instead be argued on
the basis of the Barrett data already reviewed that what distinguishes
the European model is not state laïcité at all but “state religiosity,”
particularly when contrasted with the U.S. model. This is a point that
emerges even more clearly from the analyses of Barro and McCleary
(2005) and of Jonathan Fox (2008) using very large worldwide data
collections for mapping church-state connectedness.49 Table 6.2 dis-
plays some of the headline results arising from a descriptive analysis
of the Fox data archive for the year 2002, arranged so as to illustrate
differences and similarities between Eastern and Western Europe. As
the note explains, Fox’s SRAS (Separation of Religion and State) mea-
sure runs from 0.00 corresponding to complete separation of religion
and state, a score represented alone out of 175 country cases by the
USA. It is constructed on the basis of six batteries of variables includ-
ing measures for state support for, or hostility against, different reli-
gions, the relative “weight” of state regulatory practices in the field of
religion, and the use of state authority to impose religious standards
on subject populations. As the Table 6.2 makes clear, no European
state matches the record of the United States on SRAS as measured
in this way, although the Netherlands and Estonia come close. The
mean score for all twenty-three Western European countries is 19.17,
where each whole point represents an instance of a derogation from,
or infringement of, strict separationism. The Eastern European mean
score at 24.24 is somewhat higher, evidently—as is easily noted from
the table—as a result of the overall higher scores of the Orthodox
countries. On the whole, with the possible exception of these latter
countries, the picture is one of a broadly similar pattern across the
whole continent characterized by a normal distribution of significant
deviations from American separationism. As the other columns of
Table 6.2 further illustrate using a combination of Cole Durham’s
and Fox’s distinctions between different configurations of state-reli-
gion regimes, there continues to be significant variety in terms of
overall institutional patterning.50 It is notable that using Fox’s cod-
ing, Separationist regimes are only to be found in Europe in France
and Azerbaijan where each, furthermore, are found to score more
highly than the Western and Eastern means, respectively, in terms of
their deviation from full SRAS. The lowest scoring states are also the
only ones coded as Accommodationist, a term that is taken to indi-
cate a state’s posture of benevolent neutrality toward religion. It is
particularly noteworthy in this context that the United States also
is judged to count not as Separationist but as Accommodationist.51
The Cooperationist pattern, for which Germany can be taken as the
prime exemplar, is well represented among the countries of the former
Soviet bloc where nine are given this designation, the same number as
are listed as having Endorsed Religion.52 Based on these codings only
one Eastern country, Armenia, with the highest deviation from SRAS
to be found across the whole of Europe, is judged to have instituted
an Official Religion regime, while in Western Europe this designation
is deemed appropriate for all of ten out a total of twenty-three cases.
If, following Ferrari, then, the laïcité of the state is to be seen as a
fundamental—even architectonic—principle of the European model
of church-state relations, it would appear on this evidence to be more
honored in the breach than the observance. Veit Bader, among oth-
ers, has recently addressed the issues of institutional design that would
have to be settled if such inconsistencies were to be removed and opti-
mal arrangements made within what he calls a context of “associative
democracy.”53
Table 6.2 The absence of church-state separation in Europe: Measures and typology
Western SRAS State-religion Former SRAS State-religion
democracies score regime type Soviet score regime Type
bloc
0.00> [USA 0.00 Accommodationist]
9.99 Netherlands 1.25 Accommodationist
Estonia 3.52 Accommodationist
Albania 7.69 Accommodationist
10.00> Luxembourg 10.50 Cooperationist Slovenia 11.96 Cooperationist
19.99 Sweden 12.17 Cooperationist
Italy 13.00 Cooperationist
Ireland 15.75 Endorsed religion
Greek 16.13 Cooperationist Bosnia-
Cyprus Herze-
govina 16.33 Cooperationist
Turkish 16.96 Endorsed religion Yugoslavia 16.75 Cooperationist
Cyprus Latvia 17.56 Cooperationist
Lithuania 17.58 Cooperationist
Germany 19.88 Cooperationist Czech
Republic 18.19 Cooperationist
Slovakia 19.88 Cooperationist
Ukraine 19.99 Cooperationist
20.00> Switzerland 20.50 Cooperationist
29.99 Portugal 21.94 Endorsed religion
Poland 22.21 Endorsed religion
France 22.92 Separationist Croatia 22.42 Endorsed religion
Andorra 23.13 Official religion Hungary 22.79 Cooperationist
Austria 24.25 Cooperationist Romania 24.50 Endorsed religion
Belgium 25.50 Cooperationist
Malta 25.63 Official religion
Norway 25.83 Official religion
Denmark 26.04 Official religion
Liechtenstein 27.50 Official religion
United Macedonia 27.17 Endorsed religion
Kingdom 27.67 Official religion(s)
Spain 28.46 Official religion
Iceland 29.79 Official religion
30.00> Russia 30.48 Endorsed religion
39.99 Finland 32.88 Official religion(s) Azerbaijan 31.65 Separationist
Moldova 32.34 Endorsed religion
Greece 33.31 Official religion Georgia 32.83 Endorsed religion
Belarus 35.66 Endorsed religion
Bulgaria 36.72 Endorsed religion
40.00> Armenia 40.36 Official religion
49.99
Mean Scores 19.17 24.24
Fox’s SRAS index scores represent an overall measure of separation of religion and state (where 0 = full separation).
It was obtained by combining six narrower-gauge measures for (a) state support for one or more religions, either
officially or in practice; (b) state hostility toward religion; (c) comparative government treatment of different
religions, including both benefits and restrictions; (d) government restrictions on the practice of religion by religious
minorities; (e) government regulation of the majority religion; and (f) legislation of religious laws (Fox 2006).
The state-religious regime type labels are a combination of those used by Fox (2006) and by Cole Durham (Durham
1996, 20–22). The latter’s “endorsed religion” is preferred to Fox’s “civil religion,” while Fox’s “official religion” is
preferred to Durham’s “established church(es).”
Source: J. Fox, “World Separation of Religion and State into the Twenty-First Century,” Comparative Political Studies
39, no. 5 (2006): 537–69.
Ma ny Natio n s U nder God:

Th e U ns ec ul ar State of Europe
The implicit reference is to the words “one nation under God” as they
are recited every day by pupils in public schools across the United
States: one of the rites of Bellah’s civil religion in America. Since 1954
the words have been included in the so-called Pledge of Allegiance:
“I pledge allegiance to the flag of the United States of America, and
to the Republic for which it stands, one nation under God, indivis-
ible, with liberty and justice for all.” This explicit, albeit nondenomi-
national, religious reference is only one of a number that mark the
presence of civil religious elements in American public life within the
overall context of a political system that is constitutionally bound to
the principles of religious freedom and nonestablishment. With the
resurgence of the religious factor in politics across the world, not
least in the United States, these marks of public religiosity have again
become controversial in some quarters.54 As the country that more
than 200 years ago first introduced the world (the Christian world
at least) to the model of the secular state, rejecting the principle of
establishment of religion in order to safeguard full religious freedom
(including, it should be noted, freedom from religious impositions), it
is notable that the United States continues to wrestle with such issues
as they arise in connection with such civil religious symbols. Mean-
time, across Europe, where in the great majority of states confessional
majoritarianism is still to be found—however lightly it is worn, or
even noticed, by most citizens—the principal civil religious rites con-
tinue to bear the stigmata of confessional differences, albeit more and
more softened by an ethic of inclusion of other mainstream religious
traditions. Given this relatively recent tendency, it is perhaps not sur-
prising that the representatives of the other traditions can often be
found to approve of many of the supportive linkages between the
state and the locally dominant religious traditions, even if they do not
benefit proportionately.55
The verdict—whether perverse or not—seems clear: after more
than two hundred years the sixteen words of the U.S. Constitution’s
First Amendment (and a fortiori the sixteen letters of either Jefferson’s
“wall of separation” or the U.S. Supreme Court’s “strict separation”)
seem to have failed, finally, to prevail over the twenty-eight letters
of one of the English language’s longest and oddest words—“anti-
disestablishmentarianism”—and the stubborn realities it represents.56
These realities only in a minority of cases take the form of full official
establishment of course, though, as has been noted, there are many
gradations and shadings of official religion or of official support for

religion to be found; they present, instead, as a variety of patterns of
“soft” or virtual religious establishment seemingly dedicated to the
working out—not always successfully—of different modus vivendi
across the multiple points of interconnection between state authori-
ties and the so-called faith communities, all without benefit (or bane)
of Jefferson’s mythic wall.
Notes
1. The controversy temporarily reached great heights with the Roman
Catholic Cardinal Archbishop of Westminster writing to all members
of the British cabinet, and critics then claiming that he was attempting
to blackmail government and Parliament. The outcome has been that
there should be no derogation from the antidiscrimination law but that
a twenty-one-month transition period should be allowed before it comes
into force.
2. See D. Martin, Toward a General Theory of Secularization (Oxford: Basil
Blackwell, 1978); and J. Casanova, Public Religions in the Modern World
(Chicago: University of Chicago Press, 1994).
3. See, for example, Bryan Wilson’s eloquent definition of secularization
as “a process in which the major areas of social organization (economy,
government, defense, law, education, health maintenance, and recre-
ation) become differentiated and autonomous, and in which organized
religion has finally relinquished the last remnants of the presidency that
once it enjoyed over the whole gamut of social affairs.” See B. Wilson,
“New Images of Christian Community,” in The Oxford Illustrated His-
tory of Christianity, ed. J. McManners (Oxford: Oxford UP, 1990), 587.
This definition relies implicitly on the notion that the state as a secular
(i.e., essentially nonreligious) organization tends under modern condi-
tions to escape—or be emancipated—from the “presidency” of religious
institutions. The formulation does not allow for the possibility that the
state and for that matter the other “major areas of social organization”
might, in some sense at least, have been religious once themselves, even
if they are seen progressively to have ceased to be so.
4. J. Casanova, Public Religions in the Modern World, 14.
5. P. Johnson, A History of Christianity (Harmondsworth: Penguin Books,
1976), 177. “By the ninth century . . . the idea of a total Christian society
had taken shape: the faith not only had answers, but definitive and com-
pulsory answers, to questions on almost every aspect of human behaviour
and arrangements” (Johnson 1976, 181).
6. R. Bendix, Kings or People: Power and the Mandate to Rule (Berkeley:
University of Los Angeles Press, 1978), ch. 2
7. B. Badie and B. Birnbaum, The Sociology of the State (Chicago: University

of Chicago Press, 1983), 87.
8. Badie and Birnbaum, Sociology of the State, 88.
9. H. J. Berman, Law and Revolution: The Formation of the Western Legal
Tradition (Cambridge, MA: Harvard University Press, 1983); S. Ehler
and J. B. Morrall, Church and State Through the Centuries (London:
Burnes & Oates, 1954).
10. Casanova, Public Religions, 15.
11. The two treaties that constituted the Peace of Westphalia did require
certain rulers to tolerate the survival of some (but not all) dissenting
traditions within their territories, but only in those territories where the
same religious divisions had already existed in 1624. Elsewhere the only
religious liberty assured by the treaties was that of the rulers, who alone
could decide on the confessional allegiance of their populations. In the
case of the Czech Lands, of course, this meant that the victory of the
Catholic forces in 1620 was allowed to stand and the Hussite tradition
continued to be forced out or driven underground.
12. See the confessional map of Europe in 1900 (developed from Rokkan’s
path-breaking Conceptual Map of Europe) in J. Madeley, “A Framework
for the Comparative Analysis of Church-State Relations in Europe,” in
Church and State in Contemporary Europe: The Chimera of Neutrality,
ed. J. T. S. Madeley and Z. Enyedi (London: Frank Cass, 2003), 28.
13. G. Davie, Religion in Modern Europe: A Memory Mutates (Oxford:
Oxford University Press, 2000).
14. P. Norris, and R. Inglehart, Sacred and Secular: Religion and Politics
Worldwide (Cambridge: Cambridge University Press, 2004); T. Byrnes
and P. Katzenstein, eds., Religion in an Expanding Europe (Cambridge:
Cambridge University Press, 2006).
15. See W. Cole Durham, “Perspectives in Religious Liberty: A Compara-
tive Framework,” in Religious Human Rights in Global Perspective,
ed. J. D. van der Vyver and J. Witte (The Hague: Martinus Nijhoff
Publishers,1996).
16. K. Ward, Religion and Community (Oxford: Clarendon Press, 2000),
106. Ward is also careful to point out that the First Amendment was
not born out of antireligious sentiment as such: “The institution of the
secular state was not an abandonment of religion or a declaration of its
unimportance to social life. It was a recognition of the fact that, in a
society of many competing beliefs, no one set could reasonably be set up
as normative. . . . This form of secularism could be called a secularism of
positive tolerance, since it regards religious belief as of such importance
that it cannot be left as a matter of unconsidered tradition.” (Ward 2000,
106–7)
17. F. H. Littell, From State Church to Pluralism: A Protestant Interpretation
of Religion in American History (New York: Doubleday & Co., 1962).
18. R. Bellah, “Religion and the Legitimation of the American Republic,” in

R. Bellah and P. Hammond, Varieties of Civil Religion (San Francisco:
Harpers & Row, 1980), 10.
19. Bellah, “Religion and the Legitimation of the American Republic,” 12.
20. Ibid.
21. D. Marquand and R. Nettler, eds., Religion and Democracy (Oxford:
Blackwell, 2000), 1.
22. See A. Stepan, “Religion, Democracy, and the Twin Tolerations,” Journal
of Democracy 11, no. 4 (2000): 37–57; J. Madeley, “European Liberal
Democracy and the Principle of State Religious Neutrality,” in Church
and State in Contemporary Europe, 1–22; R. J. Barro and R. McCleary,
“Which Countries Have State Religions?” Quarterly Journal of Econom-
ics 4 (2005): 1331–70; and J. Fox, A World Survey of Religion and the
State (Cambridge: Cambridge University Press, 2008).
23. R. Rémond, Religion and Society in Modern Europe (Oxford: Blackwell,
1999), 38.
24. A. Kuru, “Passive and Assertive Secularism: Historical Conditions, Ideo-
logical Struggles, and State Policies Toward Religion,” World Politics 59,
no. 4 (2007): 568–94.
25. Stepan, “Religion, Democracy, and the Twin Tolerations.”
26. The turmoil after the First World War was a virtual “extinction event”
for formal church establishment in much of Continental Europe. See J.
Madeley, “Religion and the State,” in Routledge Handbook of Religion
and Politics, ed. J. Haynes (London: Routledge, 2008).
27. M. Perry, Under God? Religious Faith and Liberal Democracy (Cam-
bridge: Cambridge University Press, 2003).
28. C. Taylor, The Secular Age (Cambridge, MA: Belknap Press, 2007),
passim.
29. B. Boyle and J. Sheen, eds., Freedom of Religion and Belief: A World
Report (London: Routledge, 1997).
30. See, for example, S. Ramet, Religious Policy in the Soviet Union (Cam-
bridge: Cambridge University Press, 1993).
31. D. Barrett et al., eds., World Christian Encyclopedia: A Comparative
Study of Churches and Religions in the Modern World AD 1900–2000
(New York: Oxford UP, 1982), 96.
32. For a tabular presentation of these attributions and the changes in them
up to 2000, see Madeley, “European Liberal Democracy and the Prin-
ciple of State Religious Neutrality,” in Church and State in Contemporary
Europe, 13, 16.
33. In addition, the support of “representatives of organizations recog-
nized by law who extend moral services, on the basis of nonconfessional
philosophy of life,” is provided for; see R. Torfs, “State and Church in
Belgium,” in State and Church in the European Union, ed. R. Robbers
(Baden-Baden: Nomos Verlag, 1996), 30.
34. Nor was this just a matter of the preamble: until 1972, clause 44 of
the Constitution of the Republic of Ireland also recognized, for exam-
ple, “the special position of the Holy Catholic Apostolic and Roman
Church as the guardian of the Faith professed by the great majority of
the citizens.”
35. J. Anderson, Religious Liberty in Transitional Societies: The Politics of
Religion (Cambridge: Cambridge University Press, 2003), 95.
36. Madeley, “European Liberal Democracy and the Principle of State Reli-
gious Neutrality,” 13.
37. A table showing these shifts diagrammatically can be found in Made-
ley, “European Liberal Democracy and the Principle of State Religious
Neutrality,” 16. A revised and updated version can be found in Mad-
eley, “Unequally Yoked: The Antinomies of Church-State Separation
in Europe and the USA,” European Political Science special issue on
Church and State (forthcoming 2008). It should be noted that in these
tables—with support from other listed data sources—Barrett et al’s cat-
egorization of 6 former Soviet bloc states as still de jure Atheist in 2000
has been changed.
38. In the judgment of Paul Avis, “[c]learly in English terms, the Church of
Sweden is very far from having been disestablished.” See P. Avis, Church
State and Establishment (London: SPCK, 2001), 20.
39. Anderson, Religious Liberty in Transitional Societies.
40. S. Ferrari, “The New Wine and the Old Cask: Tolerance, Religion, and
the Law in Contemporary Europe,” in The Law of Religious Identity:
Models for Post-Communism, ed. A. Sajo and S. Avineri (The Hague:
Kluwer Law International, 1999), 1–15, esp. 2.
41. On these problems, see J. T. Richardson, Regulating Religion: Case Stud-
ies from Around the Globe (London: Kluwer Academic/Plenum, 2004).
42. Ferrari, “The New Wine and the Old Cask,” 3. Emphasis added.
43. Rémond, Religion and Society in Modern Europe, 215.
44. Ibid., 217.
45. R. Audi, “The Separation of Church and State and the Obligations of
Citizenship,” Philosophy and Public Affairs 18, no. 3 (1989): 259–96.
46. S. Monsma and C. Soper, eds., The Challenge of Pluralism: Church and
State in Five Democracies (Oxford: Rowman & Littlefield, 1997).
47. R. Neuhaus, The Naked Public Square: Religion and Democracy in Amer-
ica (Grand Rapids: Eerdmans, 1984).
48. Ferrari, “The New Wine and the Old Cask,”11.
49. Barro and McCleary, “Which Countries Have State Religions?”; and
Fox, “World Separation of Religion and State into the Twenty-First
Century.”
50. Cole Durham, “Perspectives in Religious Liberty,” in Religious Human
Rights in Global Perspective.
51. In line with the Fox finding, Cole Durham points out that many schol-
ars—McConnell, for example—argue that the United States should now
to be regarded as Accommodationist rather than Separationist not least
because “[a]s state influence becomes more pervasive and regulatory
burdens expand, refusal to exempt or accommodate shades into hostil-
ity”; see Cole Durham, “Perspectives in Religious Liberty,” 21.
52. Cole Durham’s term Endorsed Religion (he actually uses the term
Endorsed Churches) is preferred to Fox’s Civil Religion because of the
latter term’s particular connotations in the work of Bellah and others.
53. V. Bader, Secularism or Democracy? Associational Governance of Religious
Diversity (Amsterdam: Amsterdam University Press, 2007).
54. Thus in 2002, the Ninth Circuit Appeals Court sitting in Sacramento,
California, ruled that, “[t]he Pledge, as currently codified, is an imper-
missible government endorsement of religion because it sends a message
to unbelievers that they are outsiders, not full members of the politi-
cal community, and an accompanying message to adherents that they
are insiders, favored members of the political community.” Two years
later the case was dismissed by the Supreme Court on a technicality,
even though three of the justices, including then Chief Justice William
Rehnquist, wanted the court to address the constitutional issue and to
rule that the pledge did not violate the establishment clause. Rehnquist’s
comment was that “to give the parent of such a child (sic) a sort of ‘heck-
ler’s veto’ over a patriotic ceremony willingly participated in by other stu-
dents, simply because the Pledge of Allegiance contains the descriptive
phrase ‘under God,’ is an unwarranted extension of the establishment
clause, an extension which would have the unfortunate effect of prohibit-
ing a commendable patriotic observance.”
55. T. Modood, ed., Church, State, and Religious Minorities (London: Policy
Studies Institute, 1997).
56. For more on this see J. Madeley, “Still the Century of Antidisestablish-
mentarianism?” European Political Science 1 (2006): 395–406.
Chapter 7
Chr i stianity, Violence,

a nd Democracy
So cio his to r ica l Select i o n f ro m
a Bas ic Religio u s R eperto i re
David Martin
My focus is on the extraordinarily complex issue of religion and

democracy and, to some extent, the related and equally complex
issue of religion and violence. Both issues are obscured by rival types
of propaganda, and to insert a social scientific understanding of what
is involved, in the face of assertions by contentious gurus concentrat-
ing on surface evidence and selecting what suits their book, is far
from easy.
I should say that the immediate context of the discussion below is
the Jeffersonian concept of the need for a wall separating church from
state, and that insofar as I stress the importance of context I assume
that the applicability of the concept varies a great deal, as does the
likelihood of the good consequences of its application as envisaged
by Thomas Jefferson—or, indeed, by Thomas Paine. To put it mildly,
the separation of church, or rather religion, from the state in Iraq may
be desirable in the abstract, but in practice would cause a lot more
trouble than it is worth. Or again, the separation of the church from
the state in England might also be more trouble than it is worth, given
the evolution of the Church of England from a focus of sociopolitical
power to its contemporary role as an umbrella institution for channel-
ing the concerns of all religious communities and for acting as a mas-
ter of ceremonies. The classic European translation of the separation
of church and state is found in the idea of a free church in a free state,
138 David Martin
of which one major realization was the disestablishment of the church

in France in 1905. However, the circumstances of French history,
notably the effects of religious monopoly in generating conflict and
hostility, ensured that the mere creation of a Jeffersonian wall of sepa-
ration did little to damp down hostilities. The pluralism of the United
States of America meant that a separation could encourage each and
every faith to be active in the public forum, whereas in France a reli-
gious monopoly engendered over time an ideological hostility which
sought to privatize religion as well as to create a model of relationships
between the state and religious bodies built on previous experience
with the Catholic Church.
S o c io lo gic a l Pr i nc i ples
There are some broad sociological principles needing to be set out
right at the beginning. The first is that if one views a given world reli-
gion (and in a sense there are only three) as a group of themes with
a strong family likeness, then the cultural realization of those themes
will vary enormously according to type of society, type of social con-
text, and historical situation. Indeed, its realization in one context
may be the reverse of what it is in another. For example, the authori-
tative structure of the Roman Catholic Church may well constrain it
to collude with conservative authoritarian regimes, such as those of
Salazar in Portugal or Franco in Spain, and to that extent work against
freedom of conscience and democracy. Yet the same authoritative
structure enabled the Catholic Church to stand up against authoritar-
ian regimes in Nazi Germany and Communist Poland, as well as the
national security states of Latin America and the Philippines. In those
contexts the Catholic Church could help clear a space for democracy,
though one might note that even liberation theology assumes Catho-
lic hegemony.
The context is also important with regard to the meaning of a
particular religious practice. For example, female headdress of vari-
ous kinds may signify seclusion and subordination in some Islamic
contexts, but in the West, particularly when adopted by professional
women, it may serve to symbolize not only a resistant identity but an
identification with a desexualized role for women in an oversexualized
Western society.
The second principle is that Christianity will be translated accord-
ing to the type of society which adopts it, and at least initially in a way
consonant with the rationale governing its adoption. With regard to
the latter, Christianity in northern, northeastern, and eastern Europe
Christianity, Violence, and Democracy 139
was often adopted because Christian potentates were extending their

power by absorbing adjacent territories, or because the monarchs of
those adjacent territories sought to gain the advantages of association
with a major civilized center, as in the case of Vladimir of Kiev after his
visit to Constantinople. Kings like Vladimir of Kiev or Clovis are not
likely to abandon an heroic style in a hurry simply because they have
acquired the gospels as part of the cultural package.
It is more likely that Christ will be recast in heroic mold in the way
illustrated in the Anglo-Saxon poem The Dream of the Rood. From
995AD onward, Olaf Haraldsson almost literally rammed Christianity
down the throat of his people, but by dying at the battle of Stiklestadt
in 1030, he was assimilated to the Christian pattern of victory through
suffering as St. Olaf. When William I of Normandy overwhelmed
King Harald at Hastings in 1066, he built an abbey to Our Lady
of Victories by way of thanksgiving, on the Old Testament principle
that the Lord is a man of war. The sociological inference is obvious.
In heroic or courtly or commercial or capitalist or nationalist societ-
ies, the Christian (and antecedent Jewish) repertoire of themes will
be raided selectively according to criteria of contemporary relevance.
Poland and Serbia will see themselves as martyr nations; Protestant
businessmen will adopt the Parable of the Talents as legitimation for
canny investment.
That is not to say that Christianity is so retuned that it simply
reflects its sociohistorical location. It is to say that when, for example,
Christian gentleness and loving-kindness become fused with a society
based on knighthood you have the ideal figure of the “verray parfit
gentil knight,” while in Victorian society you have the ideal of the
“Christian gentleman.” What is in essence a panhuman virtue, per-
taining to the gens but espoused in the New Testament, acquires a
link to status location in a given type of society, and in this case a link
to a particular gender. The ideal of gentleness or loving-kindness is
not lost but takes on a sociohistorical coloring.
The point is best illustrated by quoting Simon Schama on com-
mercial and Calvinist Amsterdam. In The Embarrassment of Riches
he writes,
As in so many other departments of Dutch culture, opposite impulses

were harmoniously reconciled in practice. The incorrigible habits
of material self-indulgence, and the spur of risky venture that were
ingrained into the Dutch commercial economy themselves prompted
all those warning clucks and solemn judgments from the appointed
guardians of the old orthodoxy. It was their task to protect the Dutch
140 David Martin
from the consequences of their own economic success, just as it was the
job of the people to make sure there was enough of a success in the first
place to be protected from. This moral pulling and pushing may have
made for inconsistency, but it did not much confuse the artisan, the
merchant, or the banker in their daily affairs. The peculiar coexistence
of apparently opposite value systems was what they expected of their
culture. It gave them room to maneuver between the sacred and pro-
fane as wants or culture commanded, without risking a brutal choice
between poverty or perdition. And they certainly did not need Calvin-
ism to tell them that riches had better embarrass, but need not lose
them salvation. That lesson had been drunk with Dutch capitalism’s
mother’s milk, in the earliest accounting between northern trade and
the Christian gospel.1
The third principle is that every important religious or ideological

position, judged by us as positive or constituting an advance, trails
an inevitable cost. Monotheism is judged to be an advance because it
seeks the inclusion of a unified humanity under one God. That, how-
ever, gives it an aggressive edge, both in relation to other monothe-
isms with a similar inclusive mission and in its encounter with resistant
particularities. The affirmation of the One actually creates the Other,
especially since the monotheistic thrust often comes to specify an axis
mundi, or key location, such as Mecca, Jerusalem, or Rome, and thus
to fuse universal claims with particular empires. That in turn is linked
to the way the interim solidarities achieved by “inclusive” particular
empires war against wider panhuman solidarities.
Again, justice and peace are often embraced as twin virtues, but an
emphasis on justice may lead to revolution or to just war at the expense
of peace, while the embrace of peace at any price leaves the field to
the powers of injustice. Love of neighbors in one context means not
using violence toward them, and in another means using violence to
defend them. A parallel kind of cost is entailed in the making of quali-
tative judgments, for example, that slavery and the subordination of
women are wrong, since one cannot then “respect” the Other when
the Other rejects that judgment. Indiscriminate respect and tolerance
are by definition incompatible with moral discrimination or, indeed, a
vigorous insistence on truth. Costs are unavoidable: one cannot fully
implement all the “goods” all the time. Even the ideology of progress
entails relegating “others” to a bygone time zone, while respecting
other people’s authentic culture may well entail leaving them there.
Th e C o s t o f Human S oli dar i ty

At this point one encounters a particular type of cost associated with
world religions, but equally present in nationalism, whether or not
ethnoreligious as in Poland or secular as in France or Baathism or
Kemalism. Religious and/or nationalist solidarity entails a cost rel-
evant to both democracy and violence since (ideally) democracy seeks
as far as possible to abjure violence in the settlement of internal con-
flicts and in the assertion of overall solidarity. In practice, all the major
forms of solidarity—religious, political, and nationalist—are ambigu-
ous and double-edged. All have fortified the One against the Other.
The way in which this cost of solidarity works out is of such major
importance for democracy and violence that it has to be treated in
some detail. World religions are premised on a concept of panhuman
solidarity located in a particular faith; that is, in its drive to universal
inclusiveness and in its embrace of what is normally judged a panhu-
man virtue: truth. One has to say immediately that this is not the
revisable truth of science, negotiated in terms of theories and support-
ing evidence, but a mode of framing permanent truths of existence.
Religious truth operates at a discursive level distinct from the level of
scientific truth. To see humankind as flawed and in need of redemp-
tion, or to respond to the creation as declaring the glory of God, is to
make a religious affirmation, not to put forward a scientific proposi-
tion. In the matter of scientific discourse we have more or less agreed
criteria for negotiating disagreements, but these are far less clear in
the matter of religious discourse. How does one negotiate the poetic
assertion that “the world is full of the glory of God”?
This is true even within religions, let alone between them—for
example, as between broad hermeneutic principles selecting key
texts as governing the rest, and literal readings for which a text is
authoritative and God-given throughout, or as between text, tradi-
tion, experience, and reason, or as between individual conscience and
ecclesiastical authority. This problem of overarching criteria as a basis
for negotiated settlements about truth within or between religions is
regularly latched on to by those who claim religion is divisive, poten-
tially violent, and undemocratic.
However, the issue is much more complicated. One has perhaps
to begin with the role of religion in establishing solidarity; that is,
the consensus fidelium, realized on the basis of what is shared. That is,
in itself, a fundamental achievement and finds a particular expression
in organic societies where authority is vested in religious and politi-
cal authorities, both allied and conflicting, as in Western Europe, or
142 David Martin
vested in religio-political authorities, as in Byzantium and the caliph-

ate. The moment that is undermined by an appeal to the individual
conscience in the interpretation of scripture, and its eventual secular
translation in terms of individual judgment as such, unity is in prin-
ciple beyond recovery. The “wars of religion” over the century or so
between Luther and the Treaty of Westphalia in 1648 were in fact
fought for a number of politico-religious reasons, and the settlement
of 1648 proposed only an interim solution, based on the unity of
religion in a given jurisdiction, whether Catholic, Lutheran, Calvinist,
or Anglican.
Notwithstanding this interim solution, the principle of individual
judgment still remained at large, either working within state churches,
for example, in the Lutheran Collegia Pietatis or the Inner Mission,
or to some extent outside, as in England and North America. During
this period of interim stabilization religion functioned as one marker
of local identity, with a relatively minor role in struggles between local
identities—for example, the struggle between Catholic France and
Protestant England (and Holland) in the eighteenth century. That
role as a marker has persisted, especially in areas of mixed religion,
such as the Balkans and the Caucasus, but conflicts even in these areas
have characteristically been about political and ethnic supremacy and
control of economic resources.
The achievement of consensus in organic society based on a princi-
ple of sameness had become a problem in societies increasingly based
on a combination of identity and difference and experiencing a secular
extension of the religious principle of individual conscience. Alter-
natively the consensual principle mutated into a secular nationalism
endowed with a quasi-religious principle of unity, as in the case of
republican France, or else into an ethnoreligious nationalism where
religion defined who was and who was not included, as in Poland.
Nationalism of whatever kind “secularizes” the consensus fidelium,
as well as the idea of chosen-ness, and characteristically expels groups
who are perceived as not belonging: ethnic or ethnoreligious cleans-
ing is the historical rule.
The essential problem for democracy was to separate the religious
sacred centered on the unity of the faithful from the social sacred
centered on the unity of the nation. That problem was solved most
easily in societies like Holland, Britain, and colonial and postcolonial
North America, and least easily in societies where the religious marker
functioned to ensure unity against oppression, as in much of eastern
Europe. In between were societies like France, Spain, and Italy, where
two principles of unity were in conflict: organic secular nationalism
and organic Catholicism, Cattolici and laici. In Russia the principles

alternated: from 1917 on there was an aggressively secular ideology,
and from 1989 on there has been an increasing identification with a
nationalist Orthodoxy.
Fo u r Stag es in t he C hr i sti an Wes t

Each of these trajectories has to be pursued in turn with regard to
religion and democracy, but before that is attempted four stages have
to be looked at specific to Christianity in the West. The first two of
these relate to the space (or the distinction) between God and Cae-
sar, between the kingdoms of “this world” and the kingdom of God.
In the first three centuries of its existence Christianity was a quasi-
universal, nonviolent, voluntary society, cherishing the space between
God and Caesar. Once established in power, that space narrowed to
comprise two mutually supporting and intermittently rivalrous juris-
dictions, with the ideal voluntary society implicitly shunted off into
monastic sidings. The second two stages involved first an interim
stabilization (Anglican, Presbyterian, Calvinist, etc.) in which the
national sacred and its consensus remained in close alliance with the
religious sacred and its consensus. In the Presbyterian/Calvinist case,
the themes selected from the Christian (and Jewish) repertoire were
city, saint/citizen, heart/sincerity, exodus, wayfarer, assembly, cov-
enant, and commonwealth. These all contained democratic potential
once an interim religio-political unity (for example, in Massachusetts)
broke down. At that point their potential was, so to speak, on the
loose, and in the North American context the way was open to the
kind of universal voluntarism embedded in the First Amendment.
The mutation of saint into citizen, of the ecumenism of the heart
(and of faith understood as trust) into sincerity, all played a part in
breaking down the principle of hierarchy with its emphasis on face
and honor as bound up in inherent status.2 So too did the mutation
of the principle of an Elect chosen by God, irrespective of status, into
the principle of converts electing (that is, choosing) to adopt a faith.
The principle of free religious choice, together with its secularized
equivalents, tended mutually to support each other so that successive
mobilizations further and further down the social scale could take on
religious as well as secular form. The Pentecostalism now expand-
ing throughout the developing world is the most recent example of
the religious mobilization (without revolution) among lower status
groups. In Europe, insofar as the organic principle survived, religious
144 David Martin
and secular mobilizations were more likely to be rivalrous, and negoti-

ated democratic outcomes less likely.
The foregoing sketch of a sequence can be put in another way. Plat-
forms are established in religious consciousness, often through ritual
disputes, such as those over offering the cup to the laity in Hussite
Prague, or the division between a lay nave and a priestly chancel, or
conflict over vestments, and these disputes fought in a constricted
ritual corridor can become generalized to society at large. The “per-
spicuity” of Scripture can become the universal right of private judg-
ment. When Luther defied the authority of Pope and Emperor at the
Diet of Worms by insisting on the ultimate authority of Scripture, he
effectively inaugurated modernity, because the next and obvious step
involved private judgment.
Concepts like commonwealth and assembly in Christian liberty
can be translated more widely in terms of political organization. For
example, it is sometimes asserted that Methodist modes of organi-
zation transmogrified into English trade union organization; and it
seems the Korean constitution was initially based on the Presbyterian
notion of covenant. There is a long revolution to be traced here, with
its earliest stages rooted in tussles over texts, words, and symbols.
However, we now need to revert to those early stages before explor-
ing the nexus of religion and democracy, religion, and violence, in
contexts other than the North Atlantic; that is, in Latin Europe and in
ethnoreligious Eastern Europe.
Th e Chr isti an Repertoi re

a nd I ts B i furc ati on
The first stage of Christian formation prior to the Constantinian estab-
lishment is fundamental, because it sets in motion a radical mutation
of Jewish themes, in particular the universalism already present, for
example, in Genesis, Isaiah, and Jonah and the interiority fostered in
Jeremiah. As I have argued elsewhere, it makes a huge difference that
Christianity spiritualized the concept of nation, as well as the idea of
the sacred capital, Jerusalem (and its temple), as the universal body of
Christ and as the New Jerusalem above, the “mother of us all.” It also
makes a huge difference that Christ was not a leader of fighting men
or a “family man,” as Mohammed was. That is consonant with the
emergence of a universal voluntary association defined as a kingdom
of God set over against the kingdom of Caesar, rather than a territorial
tribe and a genealogy of blood based on a new sacred capital in Mecca
and proposing world conquest. In facing the imperial representative,
Pontius Pilate, Christ (once again) rejected violence and declared his
kingdom was not of this world. Thus nonviolence was built into a
new universal (ecumenical) spiritual union, separate from the state
and from its monopoly of violence. The communion of Christians
was to be such that they “called no man ‘father’” and rendered “no
man evil for evil,” cherished affective bonds based on fraternity not
the family, shared goods through the diaconate, and refused to take
each other to law to settle disputes. In relation to religious law they
were further defined by “faith” and inwardness, rather than by exter-
nal conformity. In relation to each other they were united across the
old boundaries of “bond or free, Jew or Gentile,” in particular by a
common language (or tongue) symbolized at Pentecost as reversing
the divisions of Babel. Such a community has aspirations toward per-
fection which go beyond anything likely to be instituted on the plane
of ordinary politics.
However, with political establishment, the perfectionist strain asso-
ciated with a voluntary group, and relativizing both family and prop-
erty, is likely to be pursued in the voluntary context of monasticism,
or to live on as a radical iconographic motif juxtaposed to the motifs
more appropriate to established power. This bifurcation of motifs
and of types of organization means that Christian civilization will be
marked by creative tensions between humility and honor, between
inwardness or conscience and lawful obedience, between peaceabil-
ity and justice, between self-giving in love and self-giving in defend-
ing one’s neighbor against assault or injustice, between “the world”
embraced and “the world” rejected.
Given the perfectionist thrust of New Testament Christianity and
its emphasis on kairos or crisis, established Christianity has to limit
the built-in tensions by reversions to the Hebrew Scriptures (the Old
Testament) or by the partial adoption of classical concepts like Sto-
icism. The Old Testament offers a concept of Solomonic kingship,
based on temporal continuity, territory, and temple, consonant with
established imperial power, and it restores the centrality of the fam-
ily running “from generation to generation” and appealing to natu-
ral birth rather than second birth in the spirit. Gospel perspectives,
emphasizing the temporal proximity of the other kingdom, partly
give way to an equable Wisdom appropriate to the everyday and to
long-term expectations. Thus at the Cathedral of Monreale in Sicily,
the Norman kings were represented iconographically as Solomonic
figures whose destiny might be to reconquer the physical territory
of Jerusalem. In that way the Christian revolution is forced by social
realities into partial reverse.
146 David Martin
We have now covered the revolutionary first two and the second
two phases of a “Western” development: the initial repertoire and its
partial reversal. We need now to look at particular trajectories, such
as those of Latin (or southern) Europe, Protestant northwest Europe,
and eastern Europe.
The Latin pattern is one of strife between religion and radical lib-
eralism in the enlightened tradition, above all in France in the period
of the Third Republic, when severe tensions led to disestablishment
in 1905. The French model of the Enlightenment, initially Deist, in
the long run generated a tradition of conflict between the secular and
the religious, which was exported to Turkey, Latin America, and to
some extent the French colonial empire, and taken up by revolution-
ary elements in the Western intelligentsia. The French Enlightenment
differed from all other Enlightenments (German, English, Dutch,
Scottish, and American) in regarding religion as a form of organic and
authoritarian unity opposed to democracy and needing to be subdued
or even replaced by an organic unity founded on the secular national-
ism of a lay republic. The strife over a secular rather than a religious
definition of nationalism in Spain and Italy had rather different out-
comes. Two rival and undemocratic traditions, secular and religious,
clashed in the Spanish Civil War, as well as in the Mexican and Russian
civil wars, pushing the Catholic Church into collusion with conserva-
tive authoritarian regimes.
This collusion took various forms. In Belgium, for example, the
introduction of mass democracy after the First World War deprived
the Catholic Church of what had previously been an easy dominance.
The initial response was widespread disillusion with liberal democ-
racy, including some interest in the approach of Charles Maurras
on the Right of French politics. In the event Catholic intellectual
opinion turned more toward the approach of Catholic Action and
Jacques Maritain, though this was still rather too aggressive for a cau-
tious Catholic hierarchy more concerned to protect its own Catholic
ghetto. It is now all too easy to forget how widespread was the disillu-
sion with liberal democracy on all sides at this time, and how numer-
ous the moves to create an alternative to it, maybe along corporatist
lines. So far as radical young Catholics were concerned—and here
we see some relevance to the Jeffersonian theme—it was important
for the Church to remain separate from the temporal power, while at
the same time promoting a society suffused with Catholic principles
along the lines of papal encyclicals. This society would recognize the
important role of discipline and authority while seeking to improve
the conditions of the workers and to create a new kind of democracy
based on corporations and decentralized communities rather than the

aggressive individualism of capitalism or the aggressive pagan statism
of the fascists. A key word for this approach was esprit, and a key point
of reference the idea of Christ the King. Nor was this at all confined
to the Francophone intelligentsia of Belgium, but was widely influ-
ential elsewhere until the sombre realities of fascism brought about
its demise.
The outcome of the Second World War enabled the Catholic
Church to embrace Christian Democracy as its Center-Right route to
democracy and as the only viable alternative to totalitarian commu-
nism established in Eastern Europe and its proxies in the communist
parties of the West. In the wake of Vatican II, the Catholic Church
partially repudiated the kind of Catholic intégrisme adopted in the
mid-nineteenth century in reaction to secular liberalism and saw itself
more as a major player in the democratic politics of Western Europe.
As the communist threat was seen off, so Catholic voting declined
and, deprived of a revolutionary threat, Democrazia Cristiana in Italy
went into crisis.
Two other patterns of relationship between religion, violence, and
democracy (and, one should add, secularization) are worth canvasing:
that of the outer Protestant rim of Scandinavia, Holland, and Brit-
ain, marked by steady democratization without religion as such being
at the heart of contention; and that of Central and Eastern Europe
where the Enlightenment was itself absolutist and religion associated
with nation-building, though with some exceptions, notably in what
is now the liberal Czech Republic.
In Britain (including Canada, Australia, and New Zealand) as well
as in Scandinavia and Holland, the Protestant religion has gener-
ally helped make the path to democracy easy. Indeed, a faith which
emphasizes personal conscience rather than ecclesiastical authority
has some affinities with democracy, and the proportion of Protestant
countries with a record of stable and early democracy is uniquely high.
Insofar as there are Catholic minorities (and this includes the USA),
they have traditionally been outside the elite sectors and unlikely to
espouse an organicist conservatism, though something like that was
tried in the postindependence Irish Republic from 1922 until its col-
lapse in the 1980s with the emergence of the “Celtic Tiger” economy.
Insofar as most Protestant countries developed steadily over a long
period without major pileups of difficult problems and did not suffer
the trauma of military defeat, the path to democracy was relatively
smooth, though Norway had a brush with the extreme Left in the
1920s, and Sweden with the Right in the thirties. Insofar as there was
148 David Martin
a religious pluralism among Protestant groups (examples here might

be the relationship between the pietism of the Bergen hinterland and
the old Left, or between English nonconformity and the Liberal and
Labour parties), their political allegiances were spread across the par-
ties without the emergence of a specific politico-religious bloc.
Moreover, the conservatism of the state churches was moderate in
tone, and there were many Anglicans and Lutherans with concerns for
welfare provision. The clergy of the Protestant state churches were in
any case not a separate echelon but integrated into the universities and
middle classes. The specifically religious parties of Scandinavia have
been small and mainly represent the values of people on the periphery
anxious about the moral styles espoused at the center. In this respect
Holland was distinctive since, like Germany, it had a large regional,
and to some extent Catholic, population, with specific political repre-
sentation in pursuit of equality in a country where the key elites were
mostly Protestant. The disaster which overtook German democracy
from 1933–45 is too complex, and in my view too specific, for discus-
sion here, but it does not undermine the overall relationship between
Protestantism and democracy. What the German case does raise is the
issue of the relation between Protestantism and nationalism, which
has been generally positive, partly because Protestant reading of the
Old Testament produced identifications with the history of Israel,
above all in the United States, but also in Ulster and England. On
the one hand, a moderate Enlightenment encouraged identifications
with Rome and Athens at the elite level, while readings of the Bible
among the people at large encouraged identification with Israel and
even a somewhat ambivalent philo-Semitism. The Jewish populations
of the Anglo-Saxon world simply amplified religious pluralism and
often inclined to the Center-Left, at least till recently. One might add
that Protestant minorities in Czech Lands and in Hungary were dif-
ferentially associated with democratic liberal nationalism.
The situation in Eastern Europe was in many ways the reverse of
the situation in the Protestant North Atlantic countries. Many of the
countries concerned were part of the Austro-Hungarian Empire, the
Prussian Empire, or the Russian Empire, all of them with histories
of enlightened absolutism. That reminds us that historically enlight-
enment and absolutism have often gone together, and illustrates the
sociological principle put forward earlier to the effect that the destina-
tion of a given idea (religious or secular) depends as much on context
and type of society as on its intrinsic character. Those countries not
under the rule of the “Christian” empires were under the rule of the
Ottoman Empire, which was not conspicuously enlightened.
Throughout much of Eastern (and Central) Europe the emergence

of movements for national self-determination brought into being an
ethnoreligiosity, with a strong xenophobic as well as—except in Bul-
garia—an anti-Semitic component, and ideological attachment to
ideas of suffering, as in Poland, or suffering martyrdom, as in Serbia.
For that matter imperial Russia also nourished messianic tendencies
in association with nationalism, and these have resurfaced strongly
since the demise of communism, so much so that the church and the
army now emerge together as the two “most trusted” institutions in
contemporary Russia.
The attempted revolutions of 1848 were liberal, nationalist, and
democratic, but the record of newly independent countries, particu-
larly between the two world wars, includes marked tendencies to a
conservative authoritarianism, even fascism, with some association
between religion and agrarian or peasant parties. Whether regimes
were conservative authoritarian or, indeed, communist authoritarian,
the Orthodox Church retained its Byzantine inheritance of symphonia
between church and state. In Romania, for example, collaboration
was strikingly close, both under monarchical and communist authori-
tarian governments. Monarchs and communists alike dealt harshly
with dissidents.
Yet the association of religion with nationalism in the circumstances
of communist decline, economic failure, and moral bankruptcy meant
that nationalist, religious, and democratic forces emerged in liaison in
the final years of the twentieth century and the opening ones of the
twenty-first, not only in Eastern Europe but in the western Ukraine
and Georgia. Indeed, the revolutions beginning in 1989 and continu-
ing up to the Orange Revolution in the Ukraine in 2005 probably had
stronger religious aspects than was the case with the liberal nationalist
revolutions of the nineteenth century. Religion provided much of the
symbolism of revolution, above all in Poland, though it could not
provide a coherent policy, and attempts to reinstate religious moral
positions in terms of state law mostly failed, though in Poland at least
the church had some degree of success. The clearest identification of
a church with democracy as such was in East Germany (the former
DDR). Though the communist government had been uniquely suc-
cessful in reducing identification with Lutheranism to a minority, it
was the Lutheran Church that provided the main havens and ven-
ues for dissidence. There was, however, little increase in the every-
day influence of the church or in the levels of belief and attendance
post-1989. As in the rest of Eastern Europe, there was a moment
when the church provided the one continuing institutional presence
150 David Martin
able to carry the search for a new autonomous identity. One might
add that in Eastern Europe as a whole, including Russia, the sense of
religious community in association with the affirmation of national
identity is not necessarily pro-Western or procapitalist. Indeed, there
is considerable suspicion about Western materialism, consumerism,
and rampant individualism, as well as a dislike of religious pluralism
as likely to undermine ethnoreligious unity. Greece, for example,
nourishes a religiously toned nationalism suspicious of the European
Union agenda and of migrants and multiculturalism, in part because
of a perceived threat from its traditional enemy, Turkey. According to
Richard Pipes, Russia under Putin has reverted to a classic combina-
tion of autocracy, Orthodoxy, and messianism (assisted by gas and oil)
after the kleptocratic free-for-all under Yeltsin. In Russia the distinc-
tion between state and society remains weak. The rule of law is less
important than stability.3
An Overv i ew
An overview of this variegated scene suggests that Protestantism has
provided uniquely easy passage for democracy, in spite of a partial
association of state churches with elite strata and a conservatism of
throne and altar, for instance, in Scandinavia and Germany. The Jef-
fersonian wall of separation is most of all viable in Protestant contexts,
above all where pluralistic conditions make its passage easy and popu-
lar, and its consequences beneficent for religion itself and its accepted
participation in the public square. Where there are modest establish-
ments of religion, as in Anglo-Scandinavia, a wall of separation is less
obviously required, while in Catholic countries its separation by no
means brings conflict to an end. When one turns to the Orthodox
world things are different yet again. The traditional Byzantine sym-
phonia of church and state has produced an identification of church
with nation, not with democracy, and certainly not with pluralism. Yet
the circumstances of communist dominance and then of its collapse
made possible some links between religion, national independence,
and democratization.
The Catholic Church, being a body extended through many cul-
tures, entertains various tendencies depending on its location and
interests. The fortress mentality of nineteenth-century Catholicism,
with its authoritarian, intégriste, and antiliberal stances, was breached
by Vatican II, but there is still a sense, represented by the present Pope
Benedict XVI, that the Church is the natural educator of nations, as
well as sole long-term guardian of Europe’s historical and cultural
identity.4 Moreover, the Church faces an increasingly aggressive secu-

larist agenda, insisting that dialogue be conducted solely on its own
terms. In other words, we have an illiberal version of liberalism which
seems to have adopted the old Catholic view that error has no rights,
and disavows those cultural continuities of the European identity in
which Christianity is profoundly implicated.
The dominant liberalism has also been forced to question its own
commitment to pluralism and multiculturalism in view of the increas-
ing Islamic presence, demographically and politically. That is an anxi-
ety it shares with the Vatican, though some of the attitudes of the
Catholic Church, for instance, in relation to sexual morality and the
public display of religious symbols, give it a community of interest
with Islam. There is another sense in which Christianity and Islam
are allied, and that is with respect to their shared emphasis on the
communal rather than the individual. Both originated in communal
societies, and in any case their understanding of “the religious” is
inherently solidary and communal. That stress on the solidary and
communal, especially in Catholicism and Islam rather than in Protes-
tantism, is in tension within the negotiated compromises inherent in
multicultural societies, defined by a combination of accepted differ-
ence with an overarching shared civility. Islamic minorities press for
inclusion under the rubric of multiculturalism and civil society, while
at the same time remaining linked to societies more inclined to the
unity of religious and national identity and the close alliance of reli-
gious and secular law. If the Catholic Church has largely abandoned
that integral vision Islam has not, thus creating a dilemma as to how
far liberal tolerance can extend to minorities increasingly segregated
in cultural ghettos at a considerable distance from the values of civil
society. How Islamic minorities, and indeed Islamic majorities, select
from their own repertoire, without an intervening enlightenment or a
reformation other than movements like Wahhabism, remains an unde-
cided question. As in the Catholic case, it seems to depend on where
Muslims are, so that in the United States they mostly assimilate to the
pluralistic ideal, whereas in Europe they are divided, and in Pakistan,
say, they are menacingly hostile to minorities.
Notes
1. Simon Schama, The Embarrassment of Riches: An Interpretation of Dutch
Culture in the Golden Age (London: Fontana/HarperCollins, 1991),
371.
152 David Martin
2. Adam Seligman, Robert Weller, Michael Puett, and Bennett Simon,

Ritual and Its Consequences: An Essay on the Limits of Sincerity (New
York/Oxford: Oxford University Press, 2008).
3. Richard Pipes, Russian Conservatism and Its Critics: A Study in Political
Culture (New Haven, CT: Yale University Press, 2006).
4. On the major change achieved by Vatican II, at the instance of bishops in
the Anglosphere and Northern Europe in alliance with Latin American
bishops, at the expense of the “southern Latin Europeans,” see Melissa J.
Wilde, Vatican II: A Sociological Analysis of Religious Change (Princeton,
NJ: Princeton University Press, 2007).
Pa rt I I I
Middle-Easter n Perspectives
Chapter 8
Reli gi on and Politics in the

Mi ddle East and North Afr ica
William B. Quandt
W hen Thomas Jefferson wrote his famous letter on “building a wall

of separation between church and state” on January 1, 1802, he spe-
cifically noted that the legislature “should make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” In
a passage included in his first draft, but marked for deletion, he made
it clear that he was opposed to the idea of a national church of which
the president would be the head.
This foundational belief that religion and politics should not be
too closely mixed remains strong in twenty-first-century America,
even though in practice we may observe some gaps in the “wall of
separation.” But with this view that the state should be both secular
and neutral in matters of religion, Americans are prone to look at a
region like the Middle East/North Africa (MENA) and conclude
that it is precisely the lack of secularism and separation that accounts
for the paucity of democracies and the prevalence of religiously
tinged politics.
The problem with this view is that it is misleading at best and quite
wrong in many cases. The idea that religion trumps politics in the
Middle East is, in fact, almost the opposite of the historical record,
where states have generally dominated and determined how reli-
gion should be observed. With the weakening of states, opposition
movements have arisen in recent years that draw heavily on religious
156 William B. Quandt
symbols, but it would be a mistake to see these movements as primar-

ily or solely religious expressions. They are largely about politics and
power, and if those now in opposition succeed in coming to power
they will almost certainly behave as other leaders have in the past—
they will view it as the prerogative of the state to decide how religion
should be taught and practiced, not the domain of religious scholars
and pious Muslims. In short, in the Middle East and North Africa
there is no wall of separation between religion and politics, but it is
usually politics, and politicians, that have the upper hand.
To explain this relationship further requires an examination of a
variety of cases, since the MENA region offers a rich array of differ-
ent models, from the formal secularism of Ataturk’s Turkey to the
Islamic Republic of Iran. Here we will look at the relatively secular
nationalist movements; the religiously anchored monarchies; radi-
cal Islamic movements and regimes; and the growing tendency for
nationalism and religion to be fused in a new formula for state legiti-
macy. Despite the significant differences in how each of these modal
types functions, we will see that political power is almost always in
the hands of individuals who are primarily political, not religious, in
their orientation. Religion thus becomes the handmaiden of politics,
not the other way around.
Th e S ec ul ar M odels :
Th e State Tr ies to C ontrol Reli g i on
Only one country in the MENA region has formally adopted secularism
as part of its founding political values—Turkey under Kemal Ataturk’s
leadership in the 1920s. But it would be a mistake to think that secu-
larism in Turkey has meant that there is a separation of mosque and
state. The Republic of Turkey is, of course, overwhelmingly Muslim
in terms of the faith of its citizens, and during its early years religion,
more than language, became the marker of which individuals ended
up moving to Turkey and which to Greece in the border areas of what
had once been the multicultural Ottoman Empire. Turkish-speaking
Christians went to Greece and Greek-speaking Muslims ended up in
Turkey.
So what was secular about Ataturk’s Turkey? First, there was the
formal abolition of the sultanate and caliphate, emblematic institutions
of the Ottoman Empire, and their replacement by a republic anchored
in the concept of popular sovereignty. Second, Ataturk adopted the
Swiss legal code as the basis for Turkish laws, not the Islamic sharia.
Third, he attacked a number of religious symbols, including the call
Religion and Politics in the Middle East and North Africa 157
to prayer in Arabic and Muslim headgear (fez) for men, and he tried
to discourage woman from wearing the veil, although he never out-
lawed it as Reza Shah did in neighboring Iran.1 Education became
the centerpiece in Ataturk’s attempt to create a new Turkish citi-
zenry. He personally pushed through language reform that abolished
the use of Arabic script and introduced modern Turkish written in
Roman letters. All of the 454 theological seminaries that had been
run by the Sharia and Pious Foundations Ministry were taken over
by the Ministry of Education, and by 1938, the year of Ataturk’s
death, neither urban nor rural schools offered religious instruction.2
According to a textbook from the 1930s, “Before the Turks accepted
the religion of the Arabs, they were a big nation. The [Islamic] reli-
gion . . . slackened the Turkish nation’s national bonds, numbed their
national feelings and enthusiasm, since the aim of the religion, which
Muhammad had founded, was the political domination of the Arab
nation over all others.”3
Ataturk did not try to disestablish Islam as the religion of the Turks
as much as he tried to Turkify and control it. By the 1940s, there was
already a conservative backlash, and one of the issues that led to the
emergence of the Democratic Party after World War II was a desire
by the new party to cater to the conservative social values of the rural
voters, who became the key to its electoral success in 1950. Even the
Republican People’s Party (Kemalists) found themselves on the defen-
sive and reintroduced religious classes in public schools in 1949.4
By the 1980s, an overtly Islamist party, the National Salvation
Party (NSP), was participating in political life and the military author-
ities were desperately trying to control the content of religious educa-
tion by opening more so-called Imam-Hatip schools to train religious
leaders. The 1982 Constitution (article 24), stated that “education
and instruction in religion and ethics shall be conducted under State
supervision and control. Instruction in religious culture and moral
education shall be compulsory in the curricula of primary and second-
ary schools.”5 Rather than constructing a “wall of separation” between
religion and the state, the state was removing the remnants of the bar-
rier that Ataturk had tried to put in place. Islam was no longer viewed
as somehow alien to Turks, but rather a religion that fit the Turkish
national character remarkably well; according to a middle-school text-
book, “In entering Islam, the Turks chose the religion most appropri-
ate for them.”6 But it was still the state that had the upper hand.
By the late 1990s, Islamist politics in Turkey—albeit of a relatively
mild variety—was in the ascendance. The NSP leader Necmettin
Erbakan briefly became prime minister. The military soon staged a
“postmodern” coup by fax that resulted in his downfall and being

banned from political life in 1997. But it was not long before a
younger generation of Islamist leaders, most notably Recep Tayyip
Erdoğ an, formed a new party, Justice and Development (AKP), that
went on to win an overwhelming victory at the polls in 2002 and
again in 2007. Old-guard Kemalists were suspicious of the AKP, but
Erdoğ an managed to stay within the bounds of the relatively secu-
lar norms set by the state’s founder. Ataturk’s picture is still on the
walls of government buildings, memorial services are still held at his
tomb, and head scarves are still not to be worn inside the Parliament
building, even by the prime minister’s wife. One can only imagine
what Ataturk would make of present-day Turkey, but I suspect that he
would still recognize the fact that the state still dominates the contest
between religious and secularizing forces.
Let us take a brief look at other cases in the Middle East where
the initial stages of nationalist expression had strong secular over-
tones. The most obvious cases are Gamal Abdel Nasser’s—Egypt in
the 1950s; Habib Bourguiba’s Tunisia; the Algerian Front de Libéra-
tion Nationale (FLN); and the early years of the Palestine Liberation
Organization (PLO). In each of these cases, the dominant legitimiz-
ing narrative was nationalist, not religious. The struggle was against
colonialism and its legacies, not against Christians or Jews, at least as
spelled out by the mainstream nationalist leaders. The religiosity—or
lack thereof—of the leaders of these movements was not a major issue
in the politics of the 1950s and 1960s. This, after all, was a period
when a kind of Left-leaning populism was at the core of nationalism.
Few people were overtly antireligious, but religion was subsumed into
the broader national narrative.
A few examples will help remind us of what may seem like a bygone
era. In 1954, just as Nasser had assumed the office of the president,
a member of the Muslim Brethren allegedly tried to assassinate him.
This event led to the banning of this powerful religiopolitical move-
ment from political life, a ban that remains formally in effect to this
day. Later, Nasser passed through a semisocialist phase during which
he nationalized industries and intensified his commitment to land
reform. The Egyptian Left was a substantial force and the alignment
with the Soviet Union from the mid-1950s onward probably opened
the way for socialist and Marxist ideas to be openly expressed. The
1967 war with Israel, however, was a huge setback for Nasser and his
brand of Arab nationalism. In the ideological vacuum that followed,
Islamist currents were not only tolerated by Nasser’s successor, Anwar
Sadat, but they were also initially encouraged as a way of weakening

those loyal to the previous regime.7
Of all the leaders of the Arab world, Tunisian President Habib
Bourguiba came closest to emulating Ataturk. He believed in a
strong, authoritarian state, but one with institutions and a commit-
ment to socioeconomic development. Heavily influenced by the very
same French against whom he had rebelled, Bourguiba introduced
progressive legislation on behalf of woman and even went so far as to
defy religious tradition by breaking the Ramadan fast in public during
daylight hours. As in Turkey, there was a backlash against his form of
modernization, especially after Bourguiba had passed from the scene,
and it fell to his successor to crush the assertive Islamist movement
(An-Nahda) with a firm hand. Tunisia remains a relatively secularized,
modernizing state with a very skeptical attitude toward Islamism. As
in Turkey and Egypt, the state remains very much in charge of the
dialogue between religion and state.8
The Algerians came a bit late to nationalism, but their experience
with colonialism was unparalleled in its intensity in the Middle East/
North Africa region. In Algeria, what came to be the FLN in 1954
was a confluence of liberal nationalist, radical nationalist, and even
some Islamist currents. Islam was simply part of the Algerian iden-
tity—it defined the people and set them apart from their non-Muslim
rulers. But the FLN also attracted support from European intellectu-
als, non-Muslims like Frantz Fanon, Marxists, Arab nationalists, and
even some Algerian Jews who were opposed in principle to colonial-
ism.9 During my own research on Algerian nationalism in the 1960s, I
tried to find and interview nationalists whose education and upbring-
ing had largely been in Arabic and with Islamist overtones. They
were few and far between. More impressive and representative was
Algeria’s first president of the Provisional Government, Ferhat Abbas,
who spoke with pride of being the best student in his French class in
the 1920s. His successor, Ahmed Ben Bella, at the moment of inde-
pendence, famously said, in French, “nous sommes Arabes, Arabes,
Arabes.” Later he adopted more of an Islamist tone after spending
many years in prison, but in 1962 nationalism, not religion, was the
dominant theme. And so it remained during the heyday of the FLN’s
hegemony through the 1980s.
Algeria’s relative secularism did not mean that Islamic social codes
could be ignored. In fact, the quasi-socialist era of Houari Boumedi-
ene produced a very conservative family code, presumably as a way of
appeasing Islamist critics.10 And when the FLN was finally challenged
by massive street protests in 1988, it was quickly apparent that Islam
would be the legitimizing discourse of those who wanted to bring

down the FLN-dominated order. (Some nonetheless saw in the new
Islamist movement, the Front Islamique du Salut, or FIS, a movement
that resembled the old FLN in its populism, nationalism, and radical
orientation—“Le FIS est le fils du FLN.”) In the bloody contest that
then pitted the old-order against the Islamists during the 1990s, it
was the military—the most secular of state institutions—that gained
the upper hand. As calm returned to Algeria by the end of the decade,
the Islamists were offered amnesty and the state tried hard to bridge
the gap between nationalists and those who had been attracted to
political Islam. As elsewhere, this meant that the state borrowed part
of the Islamist agenda. But it was, again, very much the state that set
the terms of the bargain, not the Islamists.11
Finally, let me conclude with a few words about the Palestine Lib-
eration Organization (PLO) and Yasir Arafat. Arafat was clearly influ-
enced by his time in Egypt and by the role of Nasser, but he also saw
in the Algerian FLN a model of sorts. Like Nasser, Arafat had flirted
with the Muslim Brethren early in his career, but he came into his
prime as a nationalist. Many of the leaders and factions that eventually
evolved around him were Left-leaning, in some cases led by Palestin-
ian Christians (George Habash and the Popular Front for the Libera-
tion of Palestine, or PFLP), and nationalism was the umbrella under
which all could be gathered. In its early days, the PLO specifically
called for a “secular democratic state” in all of Palestine.12 Over time,
the word “secular” was dropped, but there were many in the ranks of
the PLO who fit the label. While the PLO always consisted of an array
of political tendencies, it is striking that none of them self-identified
as Islamist. It was, instead, outside the framework of the PLO, and
with more than a hint of initial support from Israeli authorities who
sought to undermine the PLO, that an Islamist movement began to
emerge in the 1980s, especially in Gaza.13 Hamas, the largest of these
movements, had roots in the Muslim Brethren and initially refused
to participate in electoral politics or to join the ranks of the national-
ists. Arafat won his election as president of the Palestinian Authority
in 1996, as did Mahmoud Abbas in 2005, with no contestation from
Islamists, who boycotted the election. But in 2006, Hamas decided
to run candidates in the election for the Legislative Council and
scored an unexpected victory. As elsewhere in the region, the decay
of the old-guard nationalist movements opened the way for Islamists.
But the state apparatus remained largely in the hands of those who
reflected the world of politics and raison d’état, not those who were
particularly pious and known for their religious learning.
To conclude this section, we can see that early experiments with

nationalism made little effort to evoke religion as an explicit part of
the political agenda. If anything, the early nationalists looked at reli-
gious leaders as conservative forces that might oppose change, or in
some cases reactionaries who could be manipulated by foreign forces.
(Algerian nationalists, for example, saw the Sufi brotherhoods as
politically suspect and potentially sympathetic to the French coloniz-
ers.) During the one-party era in Turkey, Egypt, Tunisia, and Algeria,
the state was clearly the dominant force and Islam was relegated to a
secondary role. The state tried to take charge of the mosque, trained
and appointed prayer leaders, and regularly brought in religious fig-
ures to express support for government actions. There was no separa-
tion between state and religion, but rather the state took charge of
religion to ensure that it would not spawn opposition movements. As
nationalism waned as the dominant discourse and legitimizing motif,
grassroots Islamist movements emerged in each of these cases and
could only be managed with considerable difficulty and the use of
force. In Turkey and Palestine, Islamists eventually managed to come
to positions of power, but the non-Islamist forces in society remained
strong enough to prevent a total victory for those who used religion
to advance their political agendas.
Mo narc hies : The K i ng

E mbo dies Rel igi ous L egi ti macy
The MENA region is home to more monarchs who exercise real
power than anywhere else in the world. This is not to say that monar-
chies have always done well in the region in terms of survival. Coups
or revolution removed monarchs in Egypt (1952), Iraq (1958), Libya
(1969), Iran (1979), and there was even a time when many assumed
that monarchies would inevitably be swept away by the forces of mod-
ernization and secularism.14 But ruling monarchs are alive and well
in Saudi Arabia, Jordan, and Morocco, along with a number of small
Gulf sheikhdoms.15 The “big three” have in common a particularly
close link between the monarch and religion. But, as in the case of the
secular republics described above, real power tends to be lodged in
the hands of political figures, not religious leaders.
The Saudi case is of special interest, since the Saud family itself
has no particular claim to religious credentials. But in the eighteenth
century, it allied itself with a then-reformist and militant Islamist
movement led by Muhammad Abd al-Wahhab. This alliance brought
together Saud tribal prowess and Wahhabi zeal. By the early twentieth
century, under the leadership of Abd al Aziz ibn Abd al-Rahman Al

Saud, this tribal-religious alliance set out to conquer much of the Ara-
bian Peninsula. The Kingdom of Saudi Arabia was established in 1932.
In the early phase of expanding Saudi influence, Abd al Aziz relied on
religious zealots to help spread the faith and Saudi rule. But once the
Kingdom had reached its current territorial dimensions, Abd al Aziz
prudently concluded that the crusading zeal of his warriors would risk
provoking clashes with the powerful British in Iraq, Jordan, and along
the coast of the Persian Gulf. He thus sought to settle the fighters
for the faith, and, when some resisted, he used force against them.
The state had used religion to expand its domain and to enhance its
legitimacy, but raison d’etat now dictated that the religious zealots be
brought to heel.
Saudi Arabia continues to present itself as the most Islamic of
states—from dress codes and social customs to laws—and the King
is commonly referred to as the Custodian of the Two Holy Places
(Mecca and Medina). Nonetheless, in recent times challenges to the
regime have come from those claiming that the Saud family is corrupt,
that it is insufficiently religious, and that its alliance with the United
States reveals its true non-Islamic orientation. In 1979, Islamic zeal-
ots seized the grand mosque in Mecca, and it was with considerable
difficulty (and some help from the French) that the Saudis finally put
down this insurrection. Years later, in the 1990s, it was another Islamic
militant, Osama bin Laden, who challenged the Saud hegemony and
criticized the alliance with the United States. He, too, was dealt with
harshly by the regime, and his followers in the Kingdom have been
met with brutal uses of force.
Jordan and Morocco differ from Saudi Arabia in the way religion
is used to legitimatize monarchical rule. Both the Hashemites in
Jordan and Sharifians in Morocco claim descent from the Prophet
Muhammad. In moments of political crisis—during a coup attempt in
Morocco in 1971 and when King Hussein severed links to the West
Bank in 1989—the monarchs have been quick to remind their subjects
of their descent from the Prophet and, in Morocco, the monarch’s
role as Commander of the Faithful. This has not prevented challenges
from arising in both countries from the Islamist tendency. In fact, in
both countries the Islamists are positioned to do well in elections if
the political system is genuinely liberalized. Once again, one can see
an uneasy relationship between state and religion, but for now there is
no doubt that the state has managed to keep the upper hand.
Th e I s l amic Repub li c of Ir an:

I s l a m Def ines the Reg i me
If there is an exception to this theme—the ability of the state to exert
control over religion in the MENA region—it would seem to be Iran.
There, after all, a powerful modernizing, relatively secular monarch,
Muhammad Reza Pahlavi, was overthrown in 1979 by a mass move-
ment led by a religious figure, Ayatollah Ruhollah Khomeini. And to
this day, supreme power in the country is held in the hands of a cleric,
Khomeini’s successor, Ayatollah Ali Khamenei, backed by shadowy
Islamic institutions of control such as the Guardians Council and the
Assembly of Experts. Today’s Iran is often labeled—misleadingly, in
my opinion—a theocracy.
There is no point trying to deny that Islam played a remarkable
role in bringing down the shah’s regime.16 But there was much more
to the revolution than an upsurge of religiosity. The shah had isolated
himself; he was ill; the economy had cooled off after a period of rapid
growth; the workers in the oil fields went on strike; the inner circle
around the shah was corrupt and eager to get to their Swiss bank
accounts when the shah faltered in late 1978; and mixed signals from
the United States may have added to the uncertainty. But there was
also the fact that Khomeini was a remarkably skilled politician. He
had been in exile since the early 1960s and had forged links with
many in the Iranian opposition, including those on the Left. His own
politicization during the 1970s, culminating in the publication of his
book on Islamic Governance and his denunciation of monarchy and
call for rule by Islamic jurists, involved a cross-class appeal to Iranians
of many backgrounds, from the “downtrodden” to bazaar merchants,
from students to workers, from nationalists to communists to pious
clerics. Much more was at work in bringing down the shah’s regime
than religion alone.17
Even in the case of the Islamic revolution, where religion seems
to have gotten the upper hand, there are a number of qualifica-
tions that have to be made. The Islamic Republic of Iran adopted
two parallel sets of political institutions. The authority of the cler-
ics was confirmed by the fact that the supreme leader would be a
senior religious figure, chosen by the so-called Assembly of Experts,
an elected body reflecting clerical preferences. There would also be a
religiously dominated Council of Guardians to ensure that legislation
conformed to Islamic law and that candidates for election (including
to the Assembly of Experts) were good Muslims. At the same time,
there was an elected parliament, the vote for all citizens (men and
women), an elected president, a modern-style bureaucracy, and even

a renamed secret service that looked remarkably like the hated Savak
of the shah’s time.
During the ten years of Khomeini’s rule, one can see the high
tide of religious influence over the affairs of state. Early on in the
revolution, those who were more secular and nationalist, as well as
the Iranian Left, were marginalized and eliminated, even those who
had fought the shah’s regime. Clerics gained control over key insti-
tutions, courts of law, the media, and economic foundations. This
did not, however, mean that the most eminent jurists in the country
were automatically elevated to positions of power. In fact, many of
Khomeini’s fellow Ayatollahs disagreed with his views on the Rule
of the Jurist (velayat i-faqih) and, as a result, they were banished to
obscurity, despite their highly regarded religious credentials. In addi-
tion, Khomeini himself showed a pragmatic streak as he addressed the
issue of who should succeed him. It was important, he said, that who-
ever held the top positions of power should know about the world,
about society, about the economy. These credential, he implied, were
as important as knowledge of religious texts. When he finally indi-
cated his preference for his successor, he turned to the first president
of the country, Ali Khamenei, a man of modest religious credentials.
To deal with this apparent anomaly, Khamenei was given the title of
ayatollah. In short, it was Khamenei’s political status that brought
him the elevated title of Ayatollah Ali Khamenei, not the other way
around. And his successor as president, Hashemi Rafsanjani, was a
merchant, not a religious scholar of distinction. In fact, none of Iran’s
four presidents since 1979 has been an eminent jurist.
What can the Iran case tell us about the relationship between reli-
gion and politics? First, it confirms the obvious fact that religion and
state are closely linked in the Middle East, but in the Iran case the
clergy has acquired an unparalleled degree of power. Nowhere else in
the region are clerics so obviously in charge of the state apparatus. But
even here, it is worth noting the presence of non-Islamist institutions
such as parliament and elections. And public opinion, if one can judge
from the elections of 1997 and 2001, which brought Mohammed
Khatami to the presidency, indicated a strong backlash against the
candidates most strongly supported by the regime. Even the surprise
election of Mahmoud Ahmadinejad in 2005 can be interpreted as a
vote against the perceived corruption of the Islamic regime as personi-
fied by Rafsanjani, who was widely viewed as the regime’s preferred
candidate. Ahmadinejad, by contrast, was from a modest background,
lived in a poor part of town, had received an engineering degree, not
a clerical education, and spoke the language of nationalism and popu-

lism, tinged with a good dose of Islamic millenarianism. But by late
2006, he was also encountering growing criticism, and the municipal
and Assembly of Experts elections in late 2006 were widely inter-
preted as a shift of support back toward moderates and reformists.
The relatively strong role of Islam in the working of the Iranian
state today may also tell us something about Shi‘a Islam as compared
to Sunni Islam. Shi‘ism is much more hierarchical than Sunnism; it
has historically been more autonomous from the state, even to the
point of having its own means of financial support. This has given
Shi‘ism a degree of credibility as an alternative to the state that Sunni
clerics, often viewed as handmaidens of state power, have lacked. Even
so, one should be careful not to exaggerate the differences in the two
tendencies within the Islamic world. There are many Shi‘a clerics who
reject the idea of rule by the clerics and worry that the Iranian expe-
rience is discrediting Islam itself. Iraq’s most eminent Ayatollah Ali
Sistani is hesitant to join the political fray and has openly disavowed
the concept of velayat i-faqih. Even some outspoken Iranians, includ-
ing former president Khatami, have raised questions about the Rule of
the Jurist institution. The Iranian case does represent the high-water
mark of religion in politics, but it is not at all certain that the clergy
will always maintain the tight grip that it seems to have today.
Isl amist Political Movements in the Arab

Wo r l d—Th e Musl im Brethren, H amas, and
Hezboll ah: Isl am as the Road to Power
If Ataturk’s Turkey and Khomeini’s Iran represent the two extremes of
how the state and religion interact in the Middle East/North Africa,
it is apparent that the relatively recent rise of Islamist political move-
ments in Lebanon, Palestine, and Egypt are closer to the Iran model
than Turkey. Their overt ideology either calls for an Islamic state or
at least a strong role for Islam in public life. But their origins are suf-
ficiently distinctive to warrant brief comment.
Egypt’s Muslim Brethren (MB) was founded in the late 1920s. It
was militantly anticolonial, and at one time spawned a radical “secret
apparatus” that engaged in terror to advance its goals. After Nasser’s
crackdown on the Muslim Brethren in the 1950s, the movement
existed on the margins of the political arena and largely disavowed
violence. In contrast to the radicals who argued for seizing state
power in order to Islamicize society from the top down, the Breth-
ren spoke of spreading Islamic values gradually through community
work, education, setting up of health clinics, providing disaster relief,

and so forth. This had the advantage of building a grassroots con-
stituency as well as avoiding the state’s wrath.18
Periodically, as in the last year of Sadat’s rule, large numbers of
Islamic activists were arrested. But the movement survived and at
times the regime in power seemed willing to use it to offset the power
of more secular opponents. When President Hosni Mubarak was
finally persuaded to loosen up some of the restrictions on political life
in 2005, the Brethren decided to run independent candidates for Par-
liament and managed to do quite well. It was not that public opinion
was necessarily so heavily on their side, but rather that they chose local
candidates carefully, limited their number, and were skilled at mobiliz-
ing their voters in the constituencies where they had candidates. As a
result, sometimes a Brethren candidate would win with only 10,000
votes while non-Islamists would split a much larger total, leaving their
top candidate in second place. Politics is, after all, about organiza-
tion, and the Brethren were better organized than the government
party, the National Democratic Party. It no doubt also helped that
the Brethren ran on an anticorruption party and their candidates were
allowed to include the slogan “Islam in the Solution” on their cam-
paign posters. Even with this victory, however, they only have eighty-
eight seats out of 454 in Parliament.
The Palestinian Hamas movement is in many ways similar to
Egypt’s MB. It came to public attention during the first Palestinian
uprising in the late 1980s and was able to show its popular appeal,
in Gaza in particular, by calling for strikes and boycotts. It did not
choose to participate in the first two presidential elections, however,
and public opinion polls during the 1980–90s regularly showed it as
only winning 15 percent to 20 percent popular support. After Pal-
estinian leader Yasir Arafat’s death in late 2004, and the collapse of
any form of peace process with Israel, there was a definite hardening
of Palestinian opinion. Support for Hamas rose to near parity with
the mainstream nationalist Fatah movement. In this context, Hamas
decided to field candidates for parliamentary elections in 2006. The
electoral system was a mixture of proportional representation (PR)
and “first past the post” in geographical constituencies. In the PR half
of the election, Fatah and Hamas more or less divided the electorate
(twenty-eight and twenty-nine seats, respectively), while in the district
votes, where the Islamists were careful to run only as many candidates
as there were seats, the split was forty-five to seventeen in Hamas’s
favor. Once again, organization, not just popularity, made the differ-
ence. With majority in the Parliament, Hamas was able to choose the
prime minister, which seemed to catch them by surprise. The choice

was not a religious leader, but rather Ismail Haniya, a former dean of
the Islamic University of Gaza. His first year in office was a particu-
larly difficult one because of Israeli and American opposition, suspen-
sion of aid, and hostility from the Fatah faction and the Palestinian
president, Mahmoud Abbas.
Finally, Hezbollah in Lebanon has grown in significance since the
early 1980s. It made a name for itself by defending the rights of the
Shi‘a in Lebanon—the largest community, but less than a major-
ity—and by fighting the Israeli occupation of the south. After the
Taif Accords that ended the Lebanese civil war, Hezbollah was the
only party to keep its armed militia (ostensibly to fight the Israelis),
which allowed them, with significant help from Iran and Syria, to cre-
ate something of a state within a state in south Lebanon. The leader of
Hezbollah, Hassan Nasrallah, became something of a mythic, charis-
matic figure, able to mobilize hundreds of thousands of his followers.
As of late 2006, he was testing his strength by calling for popular pro-
tests to force the resignation of the government in Lebanon. He said
he did not favor an Islamic state for Lebanon, given its social makeup,
but he seemed determined to enhance the power of the Shi‘a minor-
ity. As with the Shi‘a political figures in Iraq, there is a strong feeling
among them that they have been discriminated against by the estab-
lishment for too long and that now is the time to right the balance.
Islam provides a potent mobilizing force, a language for expressing
grievance, and a basis for collective action.19
A N atio nal ist-I sl ami s t Symb i os i s :

Th e State a nd Rel igi on i n Egypt Today
By way of conclusion, we will briefly examine the role of the state
and religion in Egypt. As the largest Arab country, with the strongest
state tradition, one might expect here to see that something akin to
the Turkish model might prevail. And to a degree, that has been the
case. The ruling elite has been relatively secular; the army and security
forces play a crucial role in upholding the state; civil society is allowed
to flourish, but within limits. Egypt, however, has been more reluc-
tant to go down the road of electoral democracy. In addition, unlike
Turkey, it has not allowed a legal Islamist party. The MB is tolerated,
but not allowed a legitimate voice in politics.
Yet today it is widely believed that if Egypt were to have a free
election, it would be the MB that would win. Mubarak has been in
power since 1981; many Egyptians dislike the idea that his son will
automatically succeed him; and reformers within the official party

are still fighting an uphill battle. Some observers see Egypt as ripe for
an Islamic revolution, similar to what happened in Iran. That would
seem to underestimate the reservoirs of power in the state and the
determination of the ruling elite to hold on. Others see the possi-
bility that the state will try to accommodate Islamist opposition by
reaching some form of accommodation with the MB, allowing more
influence of religion in society, allowing a strong minority presence
of Islamists within the parliament, and showing more overt deference
to Islamist values.
Whatever the precise outcome, Egypt seems likely to reinforce the
main theme of this chapter—that politics and religion in the Middle
East/North Africa region have become deeply involved with one
another. Even a strong state with a secular nationalist past has been
obliged to accommodate Islamist forces; but at the same time, even
the oldest and best entrenched Islamist movement, the Egyptian
Muslim Brethren, has had to tread carefully when confronting state
power. Within this complex region, we see several different models of
how the state and religion interact, but nowhere, it can be said quite
clearly, does the Jeffersonian model of a “wall of separation” exist.
Usually the state has the upper hand in the struggle with Islamists, but
in recent years the Islamists have proved themselves adept at challeng-
ing the old nationalist order and on occasions they have been able to
take control of the state. But even when they do, they behave more as
politicians than as religious leaders of a transnational Islamic umma.
The state is too well established in today’s Middle East for it or its logic
to be ignored, even by those Islamists who may denounce nationalism
and its institutional expressions as contrary to Islam itself.
Notes
1. See Niyazi Berkes, The Development of Secularism in Turkey (New York:
Routledge, 1999); and Bernard Lewis, The Emergence of Modern Turkey
(New York: Oxford, 2001).
2. Sam Kaplan, The Pedagogical State: Education and the Politics of National
Culture in Post-1980 Turkey (Palo Alto, CA: Stanford University Press,
2006), 42.
3. Kaplan, Pedagogical State, 80–81.
4. Ibid., 43.
5. Ibid., 45.
6. Ibid., 81.
7. See Jean Lacouture, Nasser (New York: Knopf, 1977); and Kirk Beattie,
Egypt During the Nasser Years: Ideology, Politics, and Civil Society (Boul-
der, CO: Westview, 1994).
8. See Clement Henry Moore, Tunisia Since Independence (Westport, CT:
Greenwood Press, 1982); Lisa Anderson, The State and Social Transfor-
mation in Tunisia and Libya, 1820–1980 (Princeton, NJ: Princeton Uni-
versity Press, 2006); and Eva Bellin, The State and Social Transformation
in Tunisia and Libya, 1820–1980 (Ithaca, NY: Cornell, 2002).
9. William B. Quandt, Revolution and Political Leadership: Algeria 1954–
1968 (Cambridge, MA: MIT Press, 1969).
10. Lazreg, Marnia, The Eloquence of Silence: Algerian Women in Question
(New York: Routledge, 1994).
11. See William B. Quandt, Between Ballots and Bullets: Algeria’s Transition
from Authoritarianism (Washington, D.C.: Brookings Institution Press,
1998); Luis Martinez, The Algerian Civil War, 1990–1998 (New York:
Columbia University Press, 2000); Séverine Labat, Les islamistes algéri-
ens: entre les urnes et le maquis (Paris: Editions du Seuil, 1995); Lahouari
Addi, L’Algérie et la démocratie: pouvoir et crise politique dans l’Algérie
contemporaine (Paris: Editions la Découverte, 1994).
12. Helena Cobban, The Palestinian Liberation Organization: People, Power
and Politics (New York: Cambridge University Press, 1984).
13. Ziad Abu-Amr, Islamic Fundamentalism in the West Bank and Gaza:
Muslim Brotherhood and Islamic Jihad (Bloomington, IN: Indiana Uni-
versity Press, 1994).
14. Samuel Huntington, Political Order in Changing Societies (New Haven,
CT: Yale, 1968), 177–91.
15. Michael Herb, All in the Family: Absolutism, Revolution, and Democratic
Prospects in the Middle Eastern Monarchies (Albany, NY: SUNY Press,
1999).
16. Charles Kurzman, The Unthinkable Revolution in Iran (Cambridge, MA:
Harvard University Press, 2004).
17. See Ervand Abrahamian, Khomeinism: Essays on the Islamic Republic
(Berkeley: University of California Press, 1993); R. K. Ramazani, Revo-
lutionary Iran: Challenge and Response in the Middle East (Baltimore,
MD: Johns Hopkins University Press, 1987); and Kurzman, Unthinkable
Revolution in Iran.
18. Carrie Rosefsky Wickham, Mobilizing Islam (New York: Columbia Uni-
versity Press, 2002).
19. Yitzhak Nakash, Reaching for Power: The Shi‘a in the Modern Arab World
(Princeton, NJ: Princeton University Press, 2006).
Chapter 9
Rev i siting Jef f erson’s

Wa ll from a Contemporary
Middle-Easter n Perspective
Ann Elizabeth Mayer
When he called for separation of religion and state, it is unlikely

that Jefferson ever considered scenarios like the ones currently facing
countries in the region comprising the Middle East and North Africa
(here shortened to “Middle East” for convenience). I propose to
bring an imaginary Jefferson to a contemporary vantage point where
he could assess the fit between his eighteenth-century idea of a wall
between religion and state and contemporary politics of religion in
that region. I believe that I might persuade Jefferson that an unantici-
pated phenomenon, the ideologization of religion, had become the
major threat to the freedoms that his wall aimed to protect. I propose
also that I could convince Jefferson that, in certain circumstances,
upholding Islam as the state religion under a traditional Islamic mon-
archy could actually help to secure space for democracy and religious
freedom. I believe that I could get him to concede, albeit reluctantly,
that in the contemporary Middle East, clinging to an absolutist policy
of separating religion and state could be unwise and even counterpro-
ductive—and that in current circumstances, certain compromise for-
mulations of constitutional principles concerning the role of religion
would be the better option.
In trying to convert Jefferson, I would not hide the fact that Mid-
dle Easterners—often of the better-educated classes—do appreciate
the benefits that could flow from constructing a Jeffersonian wall
172 Ann Elizabeth Mayer
between religion and state. These benefits have been highlighted by

Muslims’ experiences under regimes that exploited Islam as a tool of
despotism. Many Muslims have come to embrace the ideal of separa-
tion after experiencing patterns of oppression resembling those once
decried by the Enlightenment thinkers who called for the disestablish-
ment of Christian churches. However, even those Muslims who in
principle would ultimately like to see a Jeffersonian wall erected may
doubt whether proposing such a wall is at all practical or prudent in
present circumstances.
To give Jefferson a sense of the politics of religion in today’s Mid-
dle East and a sense of the startlingly wide variations in the religion-
state relationship there, I can point to two extremes that happen to
be embodied in two neighboring states: secular Turkey and theo-
cratic Iran.
Jefferson would have to be apprised that the Ottoman Empire, still
formidable in his day, had painfully disintegrated and eventually col-
lapsed in the early twentieth century, leaving behind many individual
states, including a Turkish state based in Anatolia. Under the secular
nationalist leader Kemal Ataturk, who had successfully defended Ana-
tolia from European attempts to carve up the remnants of Ottoman
territory, the most Europeanized modern Muslim state emerged. On
the same territory where Ottoman Sultans had maintained pretensions
to rule as caliphs, successors to the Prophet Muhammad, a French-
style republican regime emerged that embraced laicite and completely
sidelined Islamic law. This model demonstrated potent appeal in other
parts of the Middle East, but at the popular level, there was strong
religiously based resistance to secularization. At the end of the twen-
tieth century, Turkey, like other Middle Eastern countries, struggled
with agitation on behalf of a countervailing ideology, Islamism, which
managed to win out in neighboring Iran.
Jefferson would need to grasp the contemporary phenomenon of
Islamism. The ideologization of religion, which entails a reconfigura-
tion of the Islamic faith, had no exact counterpart in Jefferson’s day.
Islamism has altered the way many Muslims conceive of the proper
religion-state relationship, as has been explained in an extremely valu-
able recent study of Muslims’ historic debates about Islamic consti-
tutionalism.1 With this background, Jefferson would be prepared to
appreciate how ideologized Islam jeopardizes rights and freedoms.
Islamists invoke the original model of the unified Muslim com-
munity, or umma, which was ruled by the Prophet Muhammad, a
leader who was an infallible guide on the requirements of Islamic law
and who combined supreme religious and political authority, a model
Revisiting Jefferson’s Wall 173
that evolved into the caliphate after his death. Among Muslims, this
ideal of a unified religiopolitical entity retains widespread appeal in
the abstract, but Islamists have stood out in their adamant insistence
that this model can be revived in present circumstances, even though
the fragmentation of the umma into separate nation-states makes this
extremely problematic. The theory goes that the historical model of
the umma was intended to be normative, that Islam requires unity of
religion and state, and that separating the two is inherently un-Islamic
and harmful to the interests of Muslims.
To grasp the reasons behind the appeal that this model holds, Jef-
ferson would need to survey the prevailing patterns of misrule, tyr-
anny, exploitation, economic stagnation, and corruption in the Middle
East, which have caused widespread social discontent and calls for a
new order.2 Islamism promises the disaffected that a utopian system
lies at hand that can easily cure all these ills. According to Islamist
theory, all that is required is rule by pious leaders committed to the
faithful implementation of Islamic law, which constitutes the blueprint
for perfect societies. Islamists claim that their programs will win divine
approval and thereby solve the problem of the relative weakness and
underdevelopment of Muslim societies vis-à-vis the economically and
militarily more powerful West, a state of affairs that rankles bitterly.
With religion and state unified, Islamists predict, the Muslim world
will be reinvigorated, will revive its former glory and power, and will
quickly outstrip the West. Islamists propagate the idea that the West
has plotted to secularize Muslim societies as part of a strategy of domi-
nation and exploitation.
I would offer the case of Iran, the country that Jefferson knew as
Persia, to illustrate the impact of Islamism and its disastrous conse-
quences for religious freedom. In the twentieth century the monarchi-
cal system, which formally retained Islam as the established religion,
had sidelined and alienated the leaders of the dominant Iranian sect,
Twelver Shi‘ism. It vigorously pursued Westernizing policies and was
seen to be subordinating Iranian interests to U.S. strategic agendas.
Iran’s last shah, one of the closest U.S. allies, was overthrown in a
1979 popular revolution that was conducted in the name of exalting
Islam while also promising democratization. Led by Ayatollah Kho-
meini, an ambitious Islamic cleric who knew how to exploit resent-
ments of the West and Islamic loyalties for his own political ends, the
revolution culminated in the emergence of a theocratic government
committed to reinstating many elements of medieval Islam. Khomei-
ni’s theory was that rule by a learned expert in Islamic law was the best
approximation of rule by the Prophet and his rightful successors. Under
Khomeini, a faction of reactionary and intolerant Shi‘ite clerics suc-

ceeded in monopolizing power, quickly manifesting their antipathy
to rights and freedoms and wielding their official Islam as a weapon
against their foes.
Believing in progress and assuming that the merits of systems
where religion and state are separated would gain recognition, Jef-
ferson would be shocked that such a cabal of retrograde theocrats
could seize power centuries after he had penned the 1779 Virginia
Statute for Religious Freedom. Jefferson would be further perturbed
to learn that in the Middle East, Iran is not the only country where
secularizing trends have been reversed and where states increasingly
undertake the role of enforcers of religious law. Other countries like
Pakistan and Sudan that had once followed relatively secular national-
ist policies have changed course in the face of an upsurge in pressures
for Islamization. Turning back the clock, several regimes have joined
Iran in enforcing a politicized version of Islamic law that has entailed
executing or imprisoning Muslims on charges of apostasy and heresy,
denouncing dissidents as enemies of religion, subjecting disfavored
Islamic sects and religious minorities to harsh discrimination and per-
secution, and censoring expression deemed disrespectful of officially
endorsed religious doctrines.
Such accounts of moves backward toward religious tyranny would
distress Jefferson, who might assume that the Turkish model of laic-
ite would be more propitious for freedoms. However, upon careful
examination of the Turkish case, he would learn that Turkish laicite
does not mean separation. In Turkey the state tries to control religion
with the aim of ensuring that it does not become a destabilizing force.
Thus, the government finances mosques and religious education con-
sonant with official policies. In practice this has meant state support
for a particular version of Sunni Islam and disregard for other Mus-
lims’ views. Members of Turkey’s large Alevi sect, whose heterodox
beliefs lead many Muslims to denigrate them as heretical, have effec-
tively been relegated to second-class status. As dissatisfied as Alevis are
with the pro-Sunni bias of Turkey’s government, they are much more
intensely opposed to Islamism. Like other Islamists, Turkish Islamists
have shown a propensity to condemn minority sects and attack non-
conforming beliefs, and their animus toward Alevis has manifested
itself in sometimes lethal violence.3
Moreover, when one looks beyond the confines of Turkish religious
policy, one perceives how ingrained patterns of repression are, proof
that disestablishing religion does not necessarily mean ending state-
imposed orthodoxy or relaxing onerous restrictions on freedom of
thought and expression. Turkey has its own rigid political orthodoxies
that are enforced by public prosecutions and by private lawsuits, as
was shown in a series of notorious cases that began in 2005.4
Both the Iranian and Turkish systems fall short by the standards
of international human rights law, a phenomenon to which Jefferson
would require an introduction. Learning about the role of the United
Nations in elaborating and promoting such principles, he would be
gratified to see the formulation in Article 18 of the 1948 Universal
Declaration of Human Rights: “Everyone has the right to freedom
of thought, conscience, and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in com-
munity with others and in public or private, to manifest his religion or
belief in teaching, practice, worship, and observance.”
Having read this declaration, Jefferson might be puzzled to learn
that at the international level, it is assumed that the practice of states
having an established religion can potentially be accommodated and
is not viewed as inherently incompatible with religious freedom. The
United Nations Human Rights Committee, which deals with civil and
political rights like freedom of religion, in referring to the Interna-
tional Covenant on Civil and Political Rights (ICCPR), advises that
“the fact [that] a religion is recognized as a state religion or that it is
established as official or traditional or that its followers comprise the
majority of the population, shall not result in any impairment of the
enjoyment of any of the rights under the Covenant.”5 That is, the
committee, although allowing establishment, takes pains to admonish
that establishment must not compromise civil and political rights.
In its commentary, the committee differentiates states having an
established religion from ones where religion is ideologized, going
on to warn that “if a set of beliefs is treated as official ideology in a
constitution, this shall not result in any impairment of the freedom
of thought, conscience, or religion, or in any discrimination against
persons who do not accept the official ideology, or who oppose it.”6
Obviously, the committee views the ideologization of religion as a
more substantial threat to religious freedom than mere establishment
of religion. However, it takes a stance that many observers of Middle
Eastern developments would deem to be unrealistic—assuming that
regimes that do adopt religious ideologies like Islamism could none-
theless be expected to show solicitude for the human rights that con-
temporary experience indicates that they disprize.
The Islamic Republic of Iran offers an apposite illustration of the
repercussions that a state’s adoption of an Islamic ideology can have.
As a product of this ideology, Iran’s 1979 constitution lacks any
provision for freedom of religion. In its preamble the constitution

indicates the ideological functions that Islam has assumed:
The basic characteristic of this revolution, which distinguishes it from

other movements that have taken place in Iran during the past hundred
years, is its ideological and Islamic nature . . . the awakened conscience
of the nation, under the leadership of Imam Khomeini, came to per-
ceive the necessity of pursuing a genuinely Islamic and ideological line
in its struggles. . . . Our nation, in the course of its revolutionary devel-
opments, has cleansed itself of the dust and impurities that accumu-
lated during the past and purged itself of foreign ideological influences,
returning to authentic intellectual standpoints and world-view of Islam.
It now intends to establish an ideal and model society on the basis of
Islamic norms. The mission of the Constitution is to realize the ideo-
logical objectives of the movement and to create conditions conducive
to the development of man in accordance with the noble and universal
values of Islam.
Invoking the official Islamic ideology, the ruling clerics crushed

religious liberty, terrorizing religious dissidents and persecuting and
prosecuting both Muslims and non-Muslims for crimes in which reli-
gious and political offenses could be commingled. Religious minori-
ties, treated as presumptive opponents of the official Islamic ideology,
suffered grievously. Some concrete examples could indicate to Jef-
ferson the nature of Iran’s theocratic system. In a chapter reminis-
cent of the worst excesses of the Spanish Inquisition, the cruelest
tortures were applied to imprisoned dissidents to make them confess
their theological errors and political crimes and publicly denounce
their own “subversive” beliefs.7 At one stage when mass executions
of imprisoned leftists were being carried out, the commission charged
with deciding which prisoners would have to die demanded that pris-
oners answer a set of questions, the answers to which would be used
to decide their fates, including the following:
Are you a Muslim? Do you believe in God? Is the Holy Koran the Word
of God? Do you believe in Heaven and Hell? Do you accept the Holy
Mohammad to be the Seal of the Prophets? Will you publicly recant
historical materialism? Will you denounce your former beliefs before
the cameras? Do you fast during Ramadan? Do you pray and read the
Holy Koran? Would you rather share a cell with a Muslim or a non-
Muslim? Will you sign an affidavit that you believe in God, the Prophet,
the Holy Koran, and the Resurrection?8
Hojjat al-Islam Sayyed Mehdi Hashemi, a clerical follower of Ayatol-

lah Khomeini who became a member of the ruling elite of the Islamic
Republic, experienced the grim consequences of unifying religion and
state. Hashemi served in high posts such as the chairmanship of the
ideological committee of the Council of Revolutionary Guards, but,
having fallen out with the leadership in 1986 over his objections to
the regime’s secret dealings with the United States and Israel, a purely
secular imbroglio, he was imprisoned. His objections to this foreign
policy imbroglio were reclassified as an offense against “Islam.” He
was subsequently pressured into making a public confession of his
deviations, which went through several iterations before authorities
had a version that they deemed sufficiently abject for broadcasting
on national television. In his televised confession, Hashemi accused
himself of succumbing to carnal instincts that had let him into illicit
relations with the former shah’s security apparatus and with Satan. He
was, he said, guilty of “heresy, apostasy, and treason against the Imam,
the Community, Islam, and the Islamic Revolution.” He called him-
self “a despicable sinner” who had no business serving in government.
He was tried and convicted in 1987 on charges including “waging
war on God” and “succumbing to Satan,” for which crimes he was
executed.9 As his case showed, after political and religious offenses
became linked, the regime’s critics risked being exposed to the death
penalty that was applied for religious offenses such as apostasy and
waging war on God.
Jefferson would discover philosophical allies among the many Ira-
nian clerics and religious thinkers who have been appalled by such
events and have emerged as strong proponents of separating religion
and state. The bolder ones have risked death to call for taking religion
out of politics, believing that Islam had become deeply corrupted as it
became an instrument of governmental oppression.10 The harsh retali-
ation that is regularly meted out to critics of Iran’s official Islamic
ideology indicates that the clerical regime fears that calls for separating
religion and state have all too great a resonance among the populace.
In 1995 the influential reformist cleric Hassan Yussefi Eshkevari
proposed a system of “Islamic Democratic Government,” proposing
that Islamic doctrine accepts that religion “has no connection with
government and state, neither in theory or in practice.”11 A leading
reformist intellectual, Akbar Ganji, in his Internet book Manifesto
of Republicanism: Republicanism versus Constitutionalism, asserted
that democracy must be Iran’s priority and that there was no chance
of democracy under the current Iranian constitution, which placed
Islamic law above all institutions—including the constitution itself.12

In 2002, another reformist thinker, Hashem Aghajari, called for an
Islamic Protestantism to rescue Islam from the clerical hierarchy. He
was subsequently arrested, convicted of apostasy, and sentenced to
death, although the sentence was eventually commuted.13
The prominent Iranian philosopher Abdolkarim Soroush, originally
a fervent believer in the Islamic Revolution, has become an important
voice expressing Muslims’ disillusionment with Islamism.14 An out-
spoken critic of Iran’s official Islamic ideology, he struggles to survive
as a beleaguered and persecuted dissident. Soroush argues that when
Muslim societies respect democratic principles, politics will necessarily
reflect voters’ Islamic values, making the preoccupation with main-
taining Islam as Iran’s state religion otiose. Wanting Islamic thought
to progress but finding that religious inquiry is blocked where Islam
is controlled by government ideologues who insist that Islam can
have only one fixed meaning, Soroush attacks the ideologization of
Islam on the theory that religion is stultified thereby. However, this
is far from his only basis for objecting to Islamism. Behind this attack
lies his prioritization of democracy and human rights, both of which
Soroush treats as being paramount values.15 Although his discussions
are placed in an Islamic framework, the ideas of Soroush are not far
from those espoused by Jefferson.
While Islamists encourage the notion that any separation of religion
and state contravenes Islam, it is not only in Iran that one finds Mus-
lims who have critically examined Islamic doctrine and history who
beg to differ. In the sphere of public law, Islamic law has always been
weakly developed, one sign of which has been that, since the death of
the Prophet Muhammad, Muslims have never agreed on the principles
of Islamic government. Even today, Muslims who propose schemes
to unify religion and state share no common philosophy about what
an Islamic state requires, which is indicative of the lack of authorita-
tive doctrine on the topic. Contemporary nation states mostly have
constitutions that are borrowed from European countries—borrowed
because their leaders find no adequate Islamic models to build on.
That is, the state itself is now based on principles alien to the Islamic
heritage. Draping this essentially secular entity with Islamic symbol-
ism—as when Islam is stipulated to be the state religion or the country
is labeled an Islamic Republic—may serve to persuade many Muslims
that this European interloper possesses an Islamic character, but this
does not alter the fact that conventional Western models of gover-
nance prevail.
Why, then, if constitutional stipulations establishing Islam in con-

temporary states are not actually mandated by Islamic doctrine, is
Islam so regularly established as the state religion in the Middle East?
A recent Harvard survey that is not limited to Muslim societies sug-
gests that factors unrelated to religious doctrine may be critical in
influencing which countries have established religions. It claims that
having one particular faith predominating within a country and hav-
ing population sizes in the middle range correlate with stipulating a
state religion.16 According to this analysis, even without Jefferson’s
campaign on behalf of religious freedom, one would not expect the
United States to have a state religion. With a population of 300 mil-
lion it ranks as one of the larger countries, and its Christian major-
ity is fractured into competing sects and denominations. Conversely,
with most Middle Eastern states having population sizes in the middle
range and many being overwhelmingly Muslim, most with a large
majority belonging to one Islamic sect, one would expect that Islam
would wind up as the established religion,
Once Islam is established, regimes wanting to displace Islam may
be deterred from doing so by apprehensions relating to the explo-
sive character of the politics of religion. In Afghanistan, where reli-
gious policy has lurched from one extreme to another, Jefferson could
observe an instructive illustration of how the religion-state relation-
ship can become a bone of contention as rival factions contend for
mastery. Since the 1970s Afghanistan has had to contend with the
overthrow of a monarchy that espoused moderate religious policies,
followed by a 1978 takeover by a ruthless Marxist clique that pursued
a tough secularist agenda with Russian military backing. This pro-
voked resistance in which Islamic fervor and Afghan nationalism were
fused in a struggle to drive out the Russian military, which culminated
in the overthrow of the Marxists in 1992. (As often happens, a push
for secularization was tainted by association with Western imperial-
ism.) In 1996, power was seized by the Taliban, a faction of Islamist
zealots who espoused an especially retrograde version of Islam and
trampled on religious freedom, only to fall out later with the United
States for refusing to render up the mastermind of a shocking terrorist
attack on New York. In the wake of the 2001 U.S. invasion, the Tal-
iban were ousted from the capital, and Afghanistan established a shaky
democracy under U.S. auspices that espoused moderate religious poli-
cies born of the need to compromise. The 2003 Afghan constitution
simultaneously upheld Islam as the state religion and also promised to
protect human rights. How these provisions would function in such
unsettled conditions and whether the fragile new government, which
was besieged by resurgent Taliban forces and unable to control the

provinces, could endure without continued Western military backing
were open to question. That is, after decades of devastating conflicts in
which religious policies had figured centrally, the relationship of reli-
gion and state remains explosive—meaning that no prudent Afghan
government would risk disestablishment.
A review of the Afghan record of repeated upheavals linked to
religious policies illustrates why governments are disinclined to risk
inflaming religious passions by pressing secularizing agendas. With
greater familiarity with contemporary Middle Eastern conditions, Jef-
ferson might come to realize that erecting a wall between religion and
state could actually be counterproductive in terms of his objective of
advancing religious freedom, because taking ambitious steps to mini-
mize the public role of Islam could energize local Islamist movements
and provoke a backlash.
Now, if Jefferson undertook some research on this topic, he would
learn that not everyone concurs that Islamism threatens democratic
freedoms. He would discover that many spokespersons for Islamist
movements and sympathetic Western scholars are currently insisting
that Islamists do not deserve the reputation that they have obtained
for espousing obscurantist policies inimical to rights and freedoms.
Their defenders claim that not all Islamists should be tarred with
the same brush and that one needs to acknowledge that some
Islamists are committed to democratic reforms and ready to respect
human rights.17
Against that claim, one could argue that by the very nature of their
ideology, typical Islamists will be disposed to crush religious freedom.
After all, their whole program rests on their conviction that they pos-
sess God’s perfect plan for ordering human society. Believing that
they are carrying out a divine mandate disposes them to be intolerant
of dissent. In this connection, it seems relevant that prior to the suc-
cess of the Islamic Revolution, Ayatollah Khomeini and his coterie
offered repeated assurances that their Islamic Revolution would be
dedicated to shoring up democratic freedoms—only to reverse course
and reveal their despotic inclinations once they had grasped the reins
of power securely in their hands.18 Until the good faith of self-pro-
claimed “democratic” Islamists is tested by more experience, it will
remain difficult to ascertain whether they are sincere or merely mak-
ing such claims with the aim of disarming their critics. In the interim,
skepticism seems warranted.
Meanwhile, Muslims who would ideally want to erect a Jefferso-
nian wall may condone governments’ defensive strategies designed
to shore up their Islamic legitimacy. In this connection, I would urge

Jefferson to consider the religion-state relationship in Morocco, a
country governed by a religiously grounded monarchy. Morocco is a
kingdom that Jefferson knew when it still styled itself a sultanate and
became the first country to recognize the new United States of Amer-
ica. The same dynasty still rules in a style that retains some features of
the eighteenth-century sultanate. However, in the interim, the overall
system of government has in many respects been Westernized, adopt-
ing many laws and institutions inspired by French models.
Jefferson would read in Article 1 of the 1996 constitution that
Morocco is defined as a constitutional, democratic, and social mon-
archy, which would suggest that the underpinnings of the state were
secular rather than religious.19 Nonetheless, Jefferson would encoun-
ter clear indications in the Moroccan constitution that religion and
state are intertwined. Article 6 provides that Islam is the religion of
the state. According to the recent Harvard research on how consti-
tutional provision for established religion correlates with population
size and predominance of one particular religion, this would be the
predictable outcome in Morocco, a country of moderate size (33
million) that is 98 percent Sunni Muslim. The same article provides
that the state “guarantees to all freedom of worship,” which Jefferson
would recognize amounts to less than a foursquare endorsement of
freedom of religion.
In the constitution, the monarch is designated “commander of the
faithful,” the ancient title for the ruler of the early Muslim commu-
nity, when all Muslims were deemed to owe political allegiance to
the rightful successor to the Prophet. According to classical models,
this ruler should be a descendant of the Prophet Muhammad’s tribe,
a descent claimed by the Moroccan dynasty. Of course, assimilating
the status of the Moroccan king to that of the earliest Islamic rulers
is incongruous in a world that has since been chopped up into many
nation-states, because the king’s religious authority is only acknowl-
edged within Moroccan territory.
Further investigation would show Jefferson that by virtue of the
Moroccan ruler’s exalted lineage and in keeping with the dynasty’s
pretensions to rule as the rightful successors to the Prophet Muham-
mad, the king is deemed to be imbued with baraka, a special sanctity
and blessing. Article 23 of the constitution recognizes this Moroccan
tradition, providing that the king’s person is inviolable and sacred.
The king’s special status is meant to be immutable.20 Other ancient
trappings of Islamic rule, including the venerable bay‘a ceremony, in
which representatives of his faithful subjects appear before the ruler to
swear allegiance to him, are perpetuated with the aim of shoring up

the mystique of the monarchy.
These characteristics of the monarchy might dispose Jefferson
to expect that religious freedom would suffer grievously. Thinking
of cases that he had studied, he might surmise that this Moroccan
system resembled England after Henry VIII established a national
church under the king’s leadership, the 1534 Act of Supremacy hav-
ing declared that the king was “the only Supreme Head in Earth
of the Church of England.” Of course, this was a system that laid
the groundwork for a dismal period of religious persecutions and
repression. In the light of this history, Jefferson might anticipate
that having a ruler who combined political and religious authority in
Morocco might occasion similar strife and subsequent degradation
of religious freedom.
In actuality, significant distinctions between the circumstances pre-
vailing in contemporary Morocco and those under Henry VIII have
made it possible for Morocco to develop a system that by the stan-
dards of the region is exceptionally open and tolerant. The Moroccan
monarchy represents religious continuity, whereas Henry VIII broke
with tradition and inaugurated a new system that accorded him lead-
ership of the Anglican Church, incurring the pope’s wrath and alien-
ating England’s Catholics. This occurred at a time of painful schisms
between Catholicism and breakaway factions that culminated in pro-
tracted warfare that shook European Christendom and also engen-
dered violent religious conflicts in England. Catholics, Anglicans, and
various Protestant groups were pitted against each other. Recourse to
religious repression by English monarchs, some favoring Catholicism
and others favoring the Protestant side, was a natural consequence.
The king’s leadership of the Islamic faith in Morocco has different
dimensions. Until the recent upsurge in Islamism, the Moroccan reli-
gious situation has been stable. In much the same way that Swedish
citizenship and affiliation with the Swedish Lutheran Church were
until recently coterminous, Moroccan identity has been intertwined
with a distinctive brand of Islam. In context, proclaiming the king to
be the “commander of the faithful” does not carry with it the ominous
portents for religious liberties that the Tudor monarchs’ assumption
of the leadership of the English Church did. Moroccans overwhelm-
ingly adhere to the Maliki rite of Sunni Islam, but Moroccan Islam
has traditionally incorporated local elements such as saint worship that
give it a special character. As was common in the Middle East before
the disruptive impact of colonialism and nationalism, local Christian
and Jewish communities have been allowed to maintain their separate
identities and to worship according to their beliefs, as was presaged

by the constitutional guarantee of “freedom of worship.” It is the rise
of Islamism that threatens the moderate policies that have heretofore
characterized the status quo.
The concept of royal sovereignty has evolved in ways that differ-
entiate the modern Moroccan monarchy from traditional sultanic
despotisms. Under the rule of Muhammad V (1927–53, 1955–61),
who served as the titular head of the Moroccan national indepen-
dence struggle against the French, the monarchy became identified
with liberating the nation. That is, in lieu of the signers of the Dec-
laration of Independence fighting for liberty, one had Morocco’s
supreme religious authority spearheading the anticolonial struggle. In
the contemporary setting, the king’s religious authority is expressly
combined with his duties to guarantee national independence, uphold
the constitution, and protect rights and liberties. Jefferson would be
intrigued to read the blend of Islamic and constitutionalist features in
Article 19 of the Moroccan constitution: “The King, commander of
the faithful, amir al-mu’minin, supreme representative of the nation,
symbol of its unity and guarantor of the permanence and continuity
of the state, shall ensure the observance of Islam and the constitution.
He shall be the protector of the rights and liberties of the citizens,
social groups, and collectivities. He shall guarantee the independence
of the nation and the territorial integrity of the Kingdom within its
authentic borders.”
By itself this article signals the distinctive role played by Moroccan
kings. In Article 19, the Moroccan king’s duties to ensure respect for
“Islam” and “the constitution” are parallel and seemingly of equal
weight. Wording in the preamble expands the meaning of “the rights
and liberties of the citizens” that the king is bound to protect, indi-
cating that Morocco adheres to human rights as they are formulated
in United Nations documents. The preamble refers to Morocco’s
awareness of “the necessity of setting its action within the context of
the international organizations of which it is an active and energetic
member,” and proclaims that “the Kingdom of Morocco subscribes
to the principles, rights, and obligations emanating from the charters
of the aforesaid organizations and reaffirms its attachment to human
rights as they are universally recognized.”
However, one would not want to mislead Jefferson into think-
ing that this constitutional reference means that international human
rights law is strictly adhered to in the religious domain. Notwithstand-
ing the affirmation of universal human rights, some traditional rules
of Islamic law continue to exert influence and curb religious freedom.
For example, Moroccan policy reflects the common understanding in

Muslim countries that Islamic law prohibits conversions from Islam
to other faiths. Thus, Morocco punishes apostates and places restric-
tions on Christian missionary activities that are aimed at converting
Muslims. In the wake of Iran’s Islamic Revolution, Shi‘ite Islam has
become associated with radical Islamism, which explains why the
Moroccan government has shown itself to reluctant to authorize
Shi‘ite organizations. Restrictions on religious freedom can overlap
with curbs on organizations and movements that are deemed politi-
cally subversive; not surprisingly, the Moroccan government exploits
its power over religion to restrict Islamism. To give him a fuller pic-
ture than I have time for here, I would refer Jefferson to the review of
the religious situation in the 2005 U.S. State Department report on
the religious climate in Morocco. (See the Appendix at the end of this
chapter for relevant excerpts.) If he compared it with reports on other
Middle Eastern countries, he would appreciate that in the regional
context, the Moroccan record stands out as a relatively progressive
one. That is, with religion and state closely intertwined, the Moroccan
model has turned out to offer a far greater degree of religious freedom
than one finds in a country like Iran.
One of the most significant developments in Morocco has been
the steady progress of democratization since the early 1990s, which
suggests that an Islamic monarchical system with many traditional
features has the capacity to accommodate expanded freedoms. Since
acceding to the throne in 1999, the current king, Muhammad VI, has
encouraged democratic reforms and has taken measures supportive of
human rights. Unfortunately, the future of the democratizing trend
is far from guaranteed given that the government has occasionally
shown nervousness about its ability to control political developments
and has clamped down hard on some opponents.
The monarchy’s close alliance with the United States compromises
its legitimacy at a juncture when U.S. policies in the Middle East
have aggravated anti-American sentiment. Widespread official cor-
ruption and the dramatic gap between the haves and have-nots have
fostered popular anger and unrest. Facing bleak prospects at home,
Moroccans have emigrated in large numbers to Europe in search of a
better life. These conditions facilitate recruitment efforts by Islamist
movements that promise that applying Islamic precepts will give rise
to a just order and spread prosperity. By far the most dynamic faction
of Moroccan Islamism is the group known as al-‘Adl wa’l-ihsan, led
by the aging Sheikh Abdessalam Yassine. This group seeks to over-
throw the monarchy and establish an Islamic state in Morocco. An
acknowledged admirer of Iran’s Islamic Revolution, Sheikh Yassine

has publicly praised its leader, the Ayatollah Khomeini, under whose
auspices Iran’s theocratic regime was established—a regime that, as
noted, was particularly destructive of religious freedom.21
Both the late King Hassan II and the current King Muhammad
VI exploited their roles as commander of the faithful and traditional
Islamic loyalties to shore up their power. Unlike the shah of Iran, an
autocrat who stood for Western-style modernity and who capitulated
as protestors filled the streets of his capital calling for an “Islamic”
revolution, the Moroccan kings are not shy about pitting their con-
siderable religious authority and charisma against dissident Moroccan
Islamists. Supporters of the monarchy would argue that without the
Islamic mystique attaching to the monarchy and related institutions,
Morocco would be more vulnerable to an Islamist takeover. Indeed,
one could maintain (somewhat crudely) that the king essentially offers
Moroccans a bargain: show deference to the sacred status of the mon-
archy and its moderate official Islam, and you will live under a system
that is flexible and able to incorporate some democratic reforms. On
the other hand, if you desert the king and open the road to an Islamist
takeover, you may suffer under the same kinds of repressive religious
policies that Islamist regimes have pursued elsewhere.
Appraising this bargain, Jefferson might question whether it was
true that Moroccan Islamists would actually be more repressive than
a monarchical regime. On this point, one would have to concede that
what policies Moroccan Islamists would implement once in power
remains a matter of conjecture. Some leading Moroccan Islamists like
Nadia Yassine, the ambitious and outspoken daughter of Sheikh Yas-
sine, insist that their objective is to establish a more democratic and
egalitarian society.22 They dismiss accusations that they will resort
to repression once they are firmly ensconced in power. However,
as already noted, there are grounds for mistrusting Islamists’ pro-
fessions of commitment to the rules of democracy and respect for
human rights.
To me, it seems plausible to assume that once Jefferson had a grasp
of the Moroccan situation, he would acknowledge that his demands
for separation of religion and state had rested on his own historically
conditioned assumptions. I propose that he might grudgingly con-
cede that upholding the king’s position as head of Moroccan Islam
and retaining Islam as the state religion could better serve his goal
of protecting religious freedom than would pulling out the prop of
religion from under the Moroccan system in this perilous and volatile
political climate. That is not to say that Jefferson would endorse the
Moroccan model as the final word on the subject; its acceptability

might be conditioned on treating it as a transitional stage that should
eventually be left behind to accommodate a fuller measure of democ-
racy and religious freedom.
But what of countries where there is no religiously sanctified mon-
archy to lend an aura of Islamic legitimacy to a system? What constitu-
tional provisions might serve to forestall a regime’s move to embrace
a repressive Islamist ideology? Since secularism does not seem to be
a viable option at this juncture, I would propose as an alternative to
a Jeffersonian wall that constitutions should set forth explicit guar-
antees of freedom of religion and also include clauses precluding the
governmental embrace of religion as an exclusivist state ideology.
The 1992 Czech Constitution offers an interesting model, avoid-
ing an express affirmation that the state will be secular and using
instead a formulation that seems more diplomatic, Article 2 affirming
that “[t]he state is founded on democratic values and must not be
tied either to an exclusive ideology or a particular religion.” A related
philosophy seems to have inspired Sudan’s 1998 Draft Constitution,
which embodied compromises aimed at calming the acute crisis that
rash and aggressive Islamization measures and brutal disregard for
the rights of non-Muslim southerners had previously engendered.
Southerners fought the north, calling for a rollback of the Islamist
policies espoused by the northern military regimes since 1983. The
civil war that had ravaged the country with no end in prospect finally
persuaded the Khartoum military dictatorship in 1998 that it was
urgent to offer concessions to the south. A new constitution was
proposed that promised significant changes in religious policy and
that aimed to heal the vast rift that had opened up between Muslims
and non-Muslims, while at the same time making some gestures to
appease Islamists.23
In this interim constitution, which was not adopted until July
2005, separation of religion and state is not expressly endorsed, but
there also is no establishment of Islam—a notable omission. Instead,
there is strong confirmation that the system accepts the multicultural
and multireligious identity of the country. Freedom of religion is
guaranteed. To placate foes of secularism the Preamble starts with an
affirmation that the people of the Sudan “are grateful to Almighty
God” for the wisdom to make the peace agreement, implying defer-
ence to the Deity. The preamble also says that the people are “mind-
ful of religious, racial, ethnic, and cultural diversity in the Sudan.”
In Article 1 the nature of the state is described. It is expressly stated
to be “multi-cultural, multi-racial, multi-ethnic, multi-religious, and
multi-lingual country where such diversities co-exist.” The Sudan is

described as “an all embracing homeland where religions and cultures
are sources of strength, harmony, and inspiration,” a clear move away
from defining the Sudan as an Islamic state.
That is, Article 1 deliberately avoids treating Islamic culture as
normative. Racial, religious, and cultural diversity is acknowledged.
This amounts to an implicit repudiation of the formerly ruthless
campaign to impose a unitary Arab and Islamic identity. Moreover,
Article 38 endorses freedom of religion and provides that “no person
shall be coerced to adopt a faith that he/she does not believe in, nor
to practice rites or services to which he/she does not voluntarily con-
sent.” It effectively disavows the earlier policy of forcible Islamiza-
tion, which had been undertaken in an attempt to root out resistance
to the official ideology.
In my estimation, if the goal is to set forth constitutional prin-
ciples that could potentially win widespread acceptance in the Middle
East and that could also shore up protections for religious freedom
by deterring the state from espousing an exclusivist Islamist ideology,
formulations along the lines of those in the Sudanese draft provisions
may offer promising models under current conditions. Their mer-
its should, in my opinion, be evaluated separately from assessments
of more recent developments on Sudan’s tragic and conflict-ridden
political scene.24
C o nclusi on
In summing up my case for my hypothetical Jefferson, I would list my
points as follows:
1. In circumstances where resentment of Western ascendancy is wide-

spread and where misgovernment and popular alienation are com-
mon, ideologized versions of Islam have proved their ability to
mobilize disaffected Muslims by promising that Islamization pro-
grams will offer comprehensive cures for sociopolitical problems
and a remedy for the relative weakness of Muslim countries vis-à-vis
the West.
2. In practice, once exclusivist Islamist ideologies have been imposed,
the unity of religion and state has proved destructive of religious
freedom and democracy while at the same time having the harmful
result of corrupting Islam by embedding it in the political agendas
of undemocratic regimes—Iran’s theocracy being a salient exam-
ple. Iran is a country where Muslims increasingly appreciate how
separating religion and state both serves democracy and protects

the integrity of religion.
3. In current conditions, even though Islamic doctrine has to be
stretched to support the unification of religion with the modern
nation-state, prevailing popular convictions that Islam requires
such unification mean that aggressive secularization measures or the
bald-faced disestablishment of Islam will tend to fuel a potentially
destabilizing backlash, providing fodder for Islamist movements.
4. Studies suggest that populations of moderate size and the predom-
inance of one religion dispose countries to provide in their consti-
tutions for a state religion. Therefore, at least for the foreseeable
future, conditions in the Middle East impede erecting Jeffersonian
walls.
5. A situation in like the one in Morocco, where the a religiously sanc-
tified monarchy sponsors a moderate established Islam while pur-
suing gradual democratization, can afford scope for considerable
religious freedom while potentially providing a bulwark against the
inroads of Islamism—amounting to a compromise strategy that
deserves at least tentative approval.
6. As an alternative to the Moroccan model, rather than aiming for
the ambitious and probably unrealistic goal of constitutional pro-
visions for separation of religion and state, constitutions could
advance related policies with a better hope of winning acceptance
through the inclusion of abstract references to the supremacy of
God—which a Deist should find acceptable—while guaranteeing
that the state will refrain from espousing any exclusivist religious
ideology.
That is, I would put it to Jefferson that in today’s Middle Eastern

context, proposals for constitutional provisions affecting religious
freedom should be vetted in terms of how likely they are to be viable
in practice in an era when the place of Islam in government is such
a hotly contested issue and when Islamist movements enjoy such a
wide following. This entails backing away from erecting Jeffersonian
walls and accepting compromise positions that are less likely to offend
religious sensibilities. Nonetheless, as is shown in the changing intel-
lectual climate in Iran in the decades since the Islamic Revolution,
Islam itself has been no barrier to an enhanced awareness of the ben-
efits of separating religion and state. Indeed, if Jefferson journeyed
to Tehran, there to join reformist clerics and progressive religious
thinkers for coffee and debates, he would find himself conversing
in a congenial milieu where he would have no need to defend the
merits of a Jeffersonian wall, which would strike his interlocutors as

self-evident.
Ap pendix : S ample As ses sment

o f R el ig io us Freedom i n M orocco
The following example is excerpted from the U.S. State Department
2006 Report on Morocco, Country Reports on Human Rights Prac-
tices—2005, released by the Bureau of Democracy, Human Rights,
and Labor, March 8, 2006, http://www.state.gov/g/drl/rls/
hrrpt/2005/61695.htm.
c. Freedom of Religion
The law provides for freedom of religion, and the government gener-
ally respected this right in practice. The constitution designates the
king as Commander of the Faithful and says that Islam is the official
state religion; nevertheless, nonMuslim communities openly practiced
their faiths with varying degrees of official restrictions. The govern-
ment placed restrictions on certain Christian religious materials and
proselytizing by members of any religion.
The government did not license or approve religions or religious
organizations. The government provided tax benefits, land, building
grants, subsidies, and customs exemptions for imports necessary for
the observance of the major religions.
Beginning in 2003 authorities accused several [imams] and reli-
gious counselors of exploiting mosques to promote Islamist parties.
The Ministry of Islamic Affairs and Endowments continued to moni-
tor mosques, placed other restrictions on Muslims and Islamic orga-
nizations whose activities were deemed to have exceeded the bounds
of religious practice or become political in nature, and began to pro-
vide religious training for imams, both male and female. The govern-
ment strictly controlled the construction of new mosques, requiring
a permit for construction. Authorities said that these measures were
instituted to avoid exploitation of mosques for political propaganda,
such as distributing pamphlets and raising funds, or for disseminating
extremist ideas.
The Ministry of Islamic Affairs and Endowments monitored Fri-
day mosque sermons and the Koranic schools (religious training insti-
tutions) to ensure the teaching of approved doctrine. At times the
authorities suppressed Islamist activity, but they generally tolerated
activities limited to the propagation of Islam, education, and charity.

Unlike the practice until 2003, security forces did not close mosques
to the public shortly after Friday services to prevent the use of the
premises for unauthorized political activity.
The government provided funds for the teaching of Islam in public
schools as part of overall public education funding.
On October 27, authorities dropped charges against a Christian
convert from Islam who had been arrested for proselytism after police
found his passport on a foreign Christian arrested for distributing
Christian materials in [Tétouan].
The small foreign Christian community operated churches, orphan-
ages, hospitals, and schools without restrictions or licensing require-
ment. Missionaries who conducted themselves in accordance with
cultural norms could largely work unhindered, but those who prosely-
tized publicly faced expulsion. During the year there were reports of
police questioning foreign missionaries because they carried Christian
materials. The number of local Christians, apart from foreign spouses
of citizens, was minute.
The government permitted the importation, display, and sale of
Bibles in French, English, and Spanish, but not in Arabic, despite the
absence of any law banning such books.
Islamic law and tradition called for punishment of any Muslim who
converted to another faith. Any attempt to induce a Muslim to con-
vert was illegal.
At year’s end the Shi‘ite organization Al Ghadir had not received
an answer to its 2002 request for official status, the first such request
for a Shi‘ite association.
Societal Abuses and Discrimination

There were no reports of anti-Semitic acts, publications, or incite-
ments to violence or hatred.
Representatives of the Jewish minority, numbering about 5,000,
generally lived in safety throughout the country. The Jewish commu-
nity operated a number of schools and hospitals whose services were
available to all citizens. The government provided funds for religious
instruction to the small parallel system of Jewish public schools. Jews
continued to hold services in synagogues throughout the country.
There are two sets of laws and courts—one for Muslims and one
for Jews—pertaining to marriage, inheritance, and family matters.
Under the new Family Status Code, which applies to Muslims, the
government began retraining judges and recruiting new civil judges,

while rabbinical authorities continued to administer family courts
for Jews. There were no separate family courts for other religious
groups. The government continued to encourage tolerance and
respect among religions.
During the 2003 terrorist attacks, members of the Salafiya Jihadia
bombed five targets, including a Jewish community center in Casa-
blanca. After the attacks Muslims marched in solidarity with Jews to
condemn terrorism. Annual Jewish commemorations took place in
the country, and Jewish pilgrims from the region regularly came to
holy sites in the country. The International Committee of the Red
Cross (ICRC) assisted the Ministry of National Education and the
Ministry of Islamic Affairs and Endowments in designing a course on
tolerance and international humanitarian law, which was introduced
in selected schools.
Notes
1. Said Amir Arjomand, “Islamic Constitutionalism,” Annual Review of
Law and Social Science 3 (December 2007), 115–40, http://arjournals
.annualreviews.org/eprint/b8Fn27n5uM5gTnBrvfGP/full/10.1146/
annurev.lawsocsci.3.081806.112753.
2. The pervasive repression and lack of freedom in Arab countries have been
described and assessed in the Arab Human Development Reports that
have been issued by the United Nations Development Program since
2002. Many of the assessments also apply to a considerable degree to non-
Arab Middle Eastern countries. These reports and details for obtaining
them are listed at http://hdr.undp.org/xmlsearch/reportSearch?y=*&c
=r%3AArab+States&t=*&k=&orderby=year.
3. See Bedriye Poyraz, “EU Minority Perspective and the Case of Alevilik in
Turkey,” EUI Working Papers RSCAS 2006/24, Robert Schuman Cen-
tre for Advanced Studies, European University Institute, San Domenico
di Fiesole, Italy, http://www.iue.it/RSCAS/WP-Texts/06_24.pdf.
4. See, for example, PEN American Center, “Indictments of Major Novel-
ists Signal Erosion of Free Expression Gains in Turkey,” news release,
July 2006, http://www.pen.org/viewmedia.php/prmMID/694.
5. United Nations Human Rights Committee, general comment 22,
art. 18, para. 9 (forty-eighth session 1993), UN Doc. CCPR/C/21/
Rev.1/Add.4 (1994), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/
9a30112c27d1167cc12563ed004d8f15?Opendocument.
6. Ibid., at para. 10.
7. See Ervand Abrahamian, Tortured Confessions (Berkeley: University of
California Press, 1999); Reza Afshari, Human Rights in Iran: The Abuse
of Cultural Relativism (Philadelphia: University of Pennsylvania Press,

2001), 46–56, 83–145.
8. Abrahamian, Tortured Confessions, 212.
9. Ibid.,162–67.
10. See generally Ziba Mir-Hosseini and Richard Tapper, Islam and Democ-
racy in Iran: Eshkevari and the Quest for Reform (London: I. B. Tauris,
2006).
11. Mir-Hosseini and Tapper, Islam and Democracy, 75. For a fuller discus-
sion of Eshkevari’s theories, see ibid., 73–100.
12. Ibid., 178.
13. Ibid., 179.
14. On this phenomenon, see Ann Elizabeth Mayer, “Islamic Law as a Cure
for Political Law: The Withering of an Islamist Illusion,” in Shaping the
Current Islamic Reformation, ed. Barbara A. Roberson (Portland, OR:
Frank Cass, 2003), 117–42.
15. Valla Vakili, “Debating Religion and Politics in Iran: The Political
Thought of Abdolkarim Soroush,” Council on Foreign Relations, New
York, NY, January 1997, http://www.drsoroush.com/English/On
_DrSoroush/E-CMO-19960100-Debating_Religion_and_Politics_in
_Iran-Valla_Vakili.html.
16. See Robert J. Barro and Rachel M. McCleary, “Which Countries
Have State Religions?” The Quarterly Journal of Economics, 120, no. 4
(November 2005): 1331–70.
17. See, for example, Amr Hamzawy, “The Key to Arab Reform: Moder-
ate Islamists,” Carnegie Endowment Policy Brief, no. 40 (August 2005).
http://www.carnegieendowment.org/files/pb40.hamzawy.FINAL.pdf.
18. Mir-Hosseini and Tapper, Islam and Democracy, 76.
19. See my discussion of the role of Islam in the Moroccan constitution in
Ann Elizabeth Mayer, “Conundrums in Constitutionalism: Islamic Mon-
archies in an Era of Transition,” UCLA Journal of Islamic and Near
Eastern Law 1 (Spring/Summer 2002), 2007–20.
20. In this regard it is significant that although ordinary constitutional pro-
visions are subject to amendment, Article 106 of Morocco’s constitu-
tion provides that there can be no constitutional revisions affecting the
monarchical form of government and the provisions on the Islamic reli-
gion, suggesting that religion and the monarchy are linked and both
sacrosanct. In the same vein, Article 39 denies members of parliament
their ordinary immunity if they express opinions disputing the monarchy
or Islam or constituting an attack on the respect due to the king.
21. Craig Whitlock, “Feud with King Tests Freedoms in Morocco,” Wash-
ington Post Foreign Service, Feb.12, 2006, A01.
22. See, for example, “Interview with Nadia Yassine of the Moroccan Justice
and Charity Group,” Carnegie Endowment Arab Reform Bulletin 4, no. 6
(July 2006), http://www.carnegieendowment.org/publications/index
.cfm?fa=view&id=18528&prog=zgp&proj=zted#interview; see also an
interview with Nadia Yassine posted on the German Web site Qantara.
de Dialogue with the Islamic World, “The System Is Blocked,” http://
www.qantara.de/webcom/show_article.php/_c-476/_nr-589/i.html.
23. Various versions of the Sudanese constitution adopted on July 6, 2005,
are in circulation. The version cited here was published as “The Interim
National Constitution of the Republic of the Sudan Issued August 2005”
in the looseleaf collection Constitutions of the Countries of the World,
published by Oceana and edited by Rainer Grote and Rudiger Wolfrum;
the editor emeritus is Gisbert H. Flanz.
24. Among the factors warranting consideration in this regard are that the
Sudanese draft constitution was not adopted until July 2005, and that
in the years since then the Bashir dictatorship has found that its need
to compromise has diminished as international developments have tilted
in Sudan’s favor and as Bashir’s hand has been strengthened by vastly
expanded oil revenues and a growing alliance with China, which is deeply
invested in exploiting Sudan’s oil resources.
Chapter 10
Consti tutionalizing Isl am

i n the Ar ab World
Nathan J. Brown
The Jeffersonian ideal of a wall of separation between religion and

politics is still a subject of contention in liberal societies; as this book
makes clear, even those who accept it understand it in different ways.
But what of Islamic government, a term that by its very name suggests
a rejection of such a wall of separation?
Indeed, there is an oft-cited tension between liberal and Islamic
forms of government. Liberal governments are said to be informed
by a secular spirit that does not denigrate religion but seeks to rel-
egate it to the private sphere. Mixing religion and politics is held
to corrupt both. Islamic forms of government are viewed as based
on the converse proposition: corruption comes from eliminating the
connection between eternal truths and public affairs. And for much
of Islamic history, the quest to understand eternal truths has gener-
ally taken legal form: what is right and wrong is a matter not sim-
ply for personal morality and practice, but should guide social and
political authorities.
This generalization is certainly based on truth. Liberal polities do
not exclude religion totally from public life, but they have devised a
variety of formulas to institute some degree of separation. Yet there
is considerable variation in implementing that separation. Not only is
the Jeffersonian ideal understood differently; it is also applied differ-
ently. Many Europeans are at best uncomfortable by the consistency
196 Nathan J. Brown
with which American political leaders publicly speak of their personal

faith and refer to God; many Americans are puzzled by the degree to
which many European states offer financial support and legal protec-
tion to some religions and manage to turn matters of how Muslim
women dress into protracted political crises.
And if liberal secular polities differ greatly on how to manage the
relationship between religion and politics, so do those that seek to find
a formula for basing a political system on Islam. For all the theoretical
importance of Islamic law, most states in the Muslim world—including
those that advance strong claims to Islamic legitimacy—base their legal
systems on civil law models originating in the non-Muslim world. In
most Muslim countries, training in a French law school would prepare
most lawyers better than an education in a medieval Islamic school of
law. In the Arab world, only a few states avoid restricting Islamic law
to matters of personal status (marriage, divorce, and inheritance), and
even then they apply Islamic law in institutional forms that few classical
scholars would recognize. But other states—most notably Saudi Ara-
bia—will not even countenance the existence of “laws” and “courts”
that do not have an Islamic basis, insisting on calling them “regula-
tions” and “committees” even when the legal content and adjudica-
tive structures clearly resemble their civil law counterparts. And Iran
claims to implement a form a theocracy known as the “guardianship
of the jurist” that accords a very significant measure of authority and
oversight responsibility to a religious scholar.
Some observers claim that Islamic states pursue an inherently con-
tradictory strategy by seeking to base a constitutional order on Islam.
If sovereignty rests with God, then how can a document written by
humans serve as the basis for the political system? But this contra-
diction is more apparent than real: any constitution that provides
possibilities for amendment acknowledges the existence of authority
higher than itself. The problem is not that ultimate sovereignty might
lie with God but that divine sovereignty can be taken to impose not
simply general moral commands but also a specific code of law—the
Islamic way or sharia.
In this chapter, I will present how Arab states have attempted to
build constitutional systems that do not violate Islamic precepts. I will
first show how and why the tensions involved in such an effort have
only emerged relatively recently, first by exploring constitutional forms
that sidestepped religious issues and then by examining the birth of
comprehensive constitutions that made it more difficult to avoid the
role of religion. I will then move to a more detailed consideration of
the provisions for Islam in Arab constitutions. I will trace how the
Constitutionalizing Islam in the Arab World 197
issue has evolved in a particularly influential predominantly Muslim

society, Egypt, showing how the controversy has grown quite sharp
but still has had little impact on governing. Finally, I will trace some of
the recent debate over the Iraqi constitution to show the spread of the
Egyptian pattern of generating more heat than light when debating
Islam and constitutionalism.
Co ns titu tio nal Roads Not Taken

For a variety of reasons, early constitutional experiments did not always
provoke questions of the relationship between the constitutional text
and the Islamic sharia. This was partly because constitutions presented
themselves as either consistent with or irrelevant to the application of
Islamic law. Two constitutional forms emerged early in Arab constitu-
tional history that did not survive long past the collapse of the Otto-
man Empire; brief exposition of these alternative forms sheds some
light on the problems raised by the more ambitious, comprehensive,
and European-style documents adopted by most Arab states in the
twentieth century.
The first alternative is best exemplified by the first Middle Eastern
constitutional document: the qanun al-dawla al-tunisiyya (law of
the Tunisian state or dynasty) of 1861. This law was understood by
Europeans at the time—and by some scholars since—as a mechanical
and inappropriate adaptation of European constitutional forms. A
reading of the document, however, reveals something quite different:
an attempt to borrow some emerging constitutional practices within
a framework described in familiar (and sometimes Islamic) terms.
Islamic political vocabulary was used most often. Members of the
newly established Grand Council, for instance, were referred to as ahl
al-hall wa-l-‘aqd (literally, the people who loosen and bind), and the
population was generally referred to as ra‘ayana (literally, our flock).
Some European usage was also adopted (the ruler was referred to as
the king—al-malik—rather than bey, perhaps an implicit assertion of
Tunisian sovereignty), but less than is often supposed. The Grand
Council and other councils clearly mixed administrative and judi-
cial functions, violating emerging European constitutional norms of
the separation of powers.1 There were some real innovations in the
document—such as its insistence on designating only a share of the
state budget for the king himself, or that taxes be levied only on a
legal basis—but they were not viewed as inimical to Islamic political
practice. (The law did imply civil equality regardless of religion, but
this principle had already been proclaimed in Tunisia prior to the
198 Nathan J. Brown
promulgation of the law.) In short, the Tunisian constitution pre-

sented itself to Tunisians less as a new political system based on
non-Islamic sources but as a new codification of preexisting political
practices and institutions. The Tunisian constitution appears to be
an attempt to develop a constitutionalist system that is Islamic but
not democratic. The point is to render authority accountable to the
Islamic sharia and to an elite that keeps the interests of the commu-
nity in mind.2 Yet the attempt to put such a constitutionalism into
practice proved abortive not only in Tunisia but elsewhere. Other
Middle Eastern states have occasionally attempted to use Islamic
political terminology to present their constitutional reforms, but
generally on an ad hoc and isolated basis.3
A second alternative constitutional path was to issue modest docu-
ments that purported not to be comprehensive bases for the political
order but merely procedural guidelines for operating existing insti-
tutions. Many early Arab constitutional efforts followed this model.
Perhaps the earliest example came with Egypt’s 1882 constitution
(termed the fundamental ordinance, or al-la’iha al-asasiyya). The
document was fairly brief, focusing almost all of its fifty-two articles
on the Consultative Council that was already sitting. An elected body,
the Council was given an extensive role in legislation and in oversight
of public finances. Ministers were invited to attend the Council ses-
sions; they could also be summoned. While the constitution stipulated
that ministers were responsible to the Council, it also mandated new
elections if a difference between the cabinet and the Council could
not be resolved. If a newly elected Council insisted on the position
of the former Council, its opinion was binding. The few rights provi-
sions were directly related to the Council and its role rather than to
the people. These covered matters like petitioning the Council or the
immunity of Council members.4 In short, this law is better under-
stood as an organic law for the Council rather than a comprehensive
legal framework. It thus provoked little debate about its relationship
with Islamic law.
Several other Arab constitutional documents followed this pattern.
For instance, the collapse of Ottoman rule in the Arab provinces moti-
vated the composition of short-lived and little-remembered constitu-
tional documents in areas that eventually became part of Transjordan
and Libya.5 Kuwait in 1938 and the Kingdom of Hijaz (after its con-
quest by the Saudi family in the 1920s) issued brief constitutional
documents that are noteworthy in retrospect for their brevity and the
modesty of their provisions.6
The Comprehensive Alter native

Yet even in the late-nineteenth century, a far more ambitious path was
opened to constitutional development—one that has provoked con-
troversies and problems regarding how to reconcile it with the preva-
lence of Islamic legal norms and provisions. The paths described above
worked to insinuate constitutional practices by incorporating them
into prevailing Islamic vocabularies or by presenting them as modest
mechanical and organizational tools that were of administrative but
not religious interest. Emerging European conceptions presented a
far more ambitious image of constitutions: they were comprehensive
legal and political frameworks emanating from the sovereign will (a
sovereign that was either a monarch or a people or some odd amal-
gamation of the two). The Ottoman constitution of 1876 introduced
such views, and it has emerged as the dominant form for Arab consti-
tutional texts over the past century.
The Ottoman constitution of 1876 was drafted by a group of lead-
ing officials and members of the ‘ulama and modified by the cabinet
before promulgation by the Sultan.7 The draft the committee finally
submitted to the sultan most closely resembled the Belgian consti-
tution of 1831 and the Prussian constitution (itself a more royalist
version of the Belgian model). The sultan submitted the draft to the
cabinet, which made some changes before promulgation.
Because the Ottoman constitution presented itself as a compre-
hensive governing framework, it provoked some debate regarding the
role of Islam and the shari‘a in Ottoman governance. Indeed, some
members of the ulama so bitterly and publicly opposed the entrance of
non-Muslims into the parliament that they were exiled. The constitu-
tion seemed partly designed to further legal equality between Muslims
and non-Muslims. Yet it stopped far short of establishing a secular
state. Islam was clearly established as the state religion in various insti-
tutional and symbolic ways. For instance, the sultan was charged with
executing provisions of sharia and qanun law. The authors of the con-
stitution most likely sought no more than to further legitimate posi-
tive legislation alongside the Islamic sharia; they also probably wished
to wean non-Muslims away from separatist hopes. The constitution
implicitly (by the way it was promulgated as well as its effective imple-
mentation8) issued from the sovereign and absolute authority of the
sultan—a feature affirmed by the decision of the sultan to suspend its
operation less than two years after promulgation. Yet the document
was reimposed in 1908 and amended the following year to introduce
a symbolically critical change: the sultan was now required to swear an
200 Nathan J. Brown
oath to the sharia, constitution, homeland, and nation—thus formal-

izing the idea that the sultan himself was subject to the will of God
and the people.
The Ottoman constitution of 1876 served as a model for constitu-
tional development in the Arab world, which also inherited the con-
troversies and problems connected to its complex messages regarding
the role of Islam in politics and governance. These controversies began
in fairly muted fashion but have emerged in virtually all Arab countries
participating in this Arab constitutional tradition.
I ns ta l l ing the Isl ami c S har i a

In the aftermath of the First World War and the collapse of the Otto-
man Empire, two Arab states sought to establish their sovereignty
and political structure by composing constitutional texts. The first
effort was undertaken in Damascus by a new (and abortive) Arab state
and turned immediately to the Ottoman constitution for inspiration.
While the constitution was not promulgated before the collapse of the
state (which occurred with the imposition of the French Mandate),
it set the pattern for other documents in the Arab East. Later Syrian,
Iraqi, Lebanese, Jordanian, and Kuwaiti documents all drew heavily
on the Ottoman constitution. There was a subtle difference in the
political context in which these constitutions were written, however.
The Ottoman document was issued in an established and recognized
state whose leadership was attempting to fend off foreign penetration
and fiscal collapse. The constitutions of the Arab East were issued
by states that were asserting (or often striving to assert) their inde-
pendence; this fact tended to heighten the importance of symbolic
elements of the constitution. It is therefore not surprising that the
Islamic provisions of the Ottoman constitution—often indirect or
connected with the Ottoman sultanate that Arab states were inter-
ested in denying—were insufficient for emerging states eager to assert
their standing and identity. They thus inserted two explicit provisions
that were only implicit in the Ottoman constitution. First, Islam was
proclaimed the religion of the state. Second, the head of state was
required to be a Muslim. In one other case (Iraq), article 76 of the
constitution recognized the sharia courts as authoritative in personal
status matters for Muslims.
To the Arab West, the next effort at constitution writing occurred
in Egypt with its 1923 constitution. This experience was successful
only in comparison with the 1920 Syrian constitution: it was actu-
ally promulgated, but the king suspended it twice and strained at the
limits implied in its provisions even when it was in force. Nevertheless,

it proved extremely influential. Not only did all subsequent Egyptian
constitutions begin with the 1923 document as their starting point,
but the influence of Egyptian constitutional lawyers throughout the
Arab world has led to many of its formulations reappearing through-
out the Arab world. Those who drafted the 1923 constitution turned
to the Ottoman constitution but also drew on their broad familiarity
with European constitutional law. As with their eastern counterparts,
the Egyptian drafters were largely satisfied with declaring Islam to
be the “religion of the state” with little elaboration. Shaykh Bakhit,
the country’s former mufti, drafted the language, which provoked
little controversy.9 Indeed, the only controversy involving religion
was occasioned by Shaykh Bakhit’s objection to a clause stating that
“the state will protect morals and feelings of religions and creeds”;
he complained that this passage risked offending Egypt’s existing
religions by spreading legal protections too broadly to sectarian and
schismatic groups. The other drafters rejected his argument, moti-
vated not simply by liberal sentiments but likely as well by the desire
to avoid giving Great Britain any excuse to intervene in protecting
foreigners and minorities.10
Thus the early architects of comprehensive constitutions in the
Arab world were largely satisfied with symbolic declarations regard-
ing religion. These provisions provoked at best theoretical debates
and had little effect on constitutional and political practice. And even
on a symbolic level, the provisions appear fairly modest in retrospect.
Two issues that have since emerged as central to debates about Islam
and the political order—the source of sovereignty and the relationship
between positive and sharia law—were not addressed, nor was this
failure deemed particularly noteworthy at the time.
Such reticence can be explained by several factors. First, religious
institutions (such as sharia courts and institutions of religious learn-
ing) at that time tended to focus their attention on maintaining their
autonomy rather than establishing hegemony over the political system
as a whole.11 Second, most of the constitutions were written in an effort
to establish or affirm independence from European rule (and, in some
cases, such as Egypt, an effort to end European extraterritoriality),
since that rule was seen as non-Islamic and even anti-Islamic. Thus,
establishing national sovereignty was hardly seen as inimical to Islamic
values. Finally, the constitutions written during the period generally
restricted themselves to modest general statements about the political
order and specific procedural provisions. The lengthy ideological and
programmatic constitutions were a thing of the future.
202 Nathan J. Brown
Yet as Arab constitutional law continued to develop, and Arab poli-

tics grew increasingly ideological, the symbolic provisions related to
Islam often grew. Islamic legal principles were often cited in consti-
tutional debates.12 It was no longer enough to refer simply to Islam
as the state religion, but lengthy catalogs of principles often grew to
include references to Islamic values or heritage. The Saudi Basic Law
of 1992 cites Islam and Islamic law in numerous provisions. In some
cases—such as in the Libyan and Iraqi constitutions—newer provi-
sions were as vague as the older ones. Occasionally, however, new
and more specific elements were added. The Moroccan constitution
of 1962 barred amendments diminishing the royal or Muslim nature
of the state; the 1970 constitution specifically exempted these mat-
ters from parliamentary immunity.13 Algeria invented a Higher Islamic
Council in 1996 for its political system, specifically enjoined to exer-
cise ijtihad. And specific steps were taken, especially in the states of
the Arabian Peninsula, to mandate Islamic legal norms in specific
areas. In the Kuwaiti constitution, for instance, article 18 stipulates
that “inheritance is a right governed by the Islamic sharia.” Yemeni
constitutions have probably been most ambitious and specific in this
regard. The 1970 constitution, for instance, required enforcement of
Islamic law in business transactions. The constitution further provided
that “in cases heard by the Courts, the provisions of this constitution
and of the State’s laws shall be applied. If there is no precedent, the
Courts shall pass their judgment in the case they are dealing with in
accordance with the general principles of the Islamic sharia.”14
Despite the increased salience of Islamic issues in constitutional
debates, the provisions discussed thus far still generally preserved the
constitution as the supreme law in the country. There might be sym-
bolic or institutional concessions to Islamic beliefs, practices, and law,
but ultimate political authority remains elsewhere: in the constitution,
in the people (with popular sovereignty proclaimed in most consti-
tutions), or in the head of state (formally in some royal system and
effectively in some republican systems).
Yet there is another set of provisions in some Arab constitutional
texts that suggests a different relationship between the political order
described in the constitution and the legal system enjoined by Islam.
Beginning with the Syrian constitution of 1950, some Arab consti-
tutional systems have cited the Islamic sharia as a source—or more
ambitiously, the chief source—of law. The 1950 Syrian constitu-
tion—the first Arab document to introduce long ideological sections
and catalogs of social, economic, and political rights—was only in
effect for a few years, and its provision regarding Islamic law had no
noticeable effect.15 In Kuwait’s 1962 constitution, a similar provision

was introduced in which “the Islamic sharia is a primary source of
legislation.” Periodic proposals to amend the constitution to make
the Islamic sharia the rather than a primary source of legislation have
thus far been unsuccessful, though there appears to be consider-
able popular support for such a change. Similar language has been
adopted in other peninsular states (such as the United Arab Emir-
ates and Oman); Saudi Arabia’s 1992 basic law has a much more
specific and detailed provision. According to article 48, “The courts
will apply the rules of the Islamic sharia in the cases that are brought
before them, in accordance with what is indicated in the Book and
the Sunna, and statutes decreed by the Ruler which do not contradict
the Book or the Sunna.”
The effect of such provisions is to imply a very different basis for
the legal order. Rather than the constitution sanctioning Islam as an
official religion and observance of the Islamic sharia in specific areas,
these provisions imply that the sharia itself stands prior to the posi-
tive legal order—including, potentially and by implication, the con-
stitution itself. If the sharia is a primary source—or even the primary
source—of legislation, then it becomes possible to argue that it forms
the fundamental legal framework. Indeed, it is noteworthy in this
regard that constitutional texts tend to refer to the sharia as a basis of
legislation (tashri‘)—thus extending the sharia’s reach to include all
legal enactments, not merely positive laws (legislation would include
laws, decrees, administrative regulations, and arguably the constitu-
tion itself), rather than referencing it as a basis of laws (qawanin) that
would only refer to a specific category of legislation (laws passed by
parliament or their equivalent).
It is therefore not surprising that these constitutional provisions
have emboldened those who seek the Islamicization of the political
order. Such language makes it possible to challenge legislation that
does not seem to be in conformity with Islamic sharia principles on
constitutional grounds. In short, it makes it possible—through con-
stitutional jurisprudence—to turn the principles of the Islamic sharia
into a supraconstitutional order.
Making such a challenge successfully is not easy, however, because
of more prosaic elements of Arab constitutional orders. In general,
constitutional claims are exceedingly difficult to make in Arab poli-
tics. While the principle of judicial review of the constitutionality of
legislation is firmly accepted in most Arab political systems, a host of
procedural, legal, and political obstacles obstruct its exercise in most
countries.16 The most significant exception is Egypt, where a strong
204 Nathan J. Brown
constitutional court has emerged that has been willing, with startling
boldness, to strike down legislation as unconstitutional—though even
that exceptional court seems to have been tamed in recent years.
Th e E g yptian Ex per i ment wi th

th e S h a r ia as T H E S ourc e of L aw
In 1971, Egypt received its “permanent” constitution to replace the
avowedly temporary documents of the Nasser years. That constitu-
tion’s second article went beyond mere declaration of Islam as the
religion of the state; such a formula was deemed insufficient. It more
ambitiously described the principles of the Islamic sharia as “a prin-
ciple source of legislation.” Arguments in favor of still-stronger provi-
sions were rejected for the moment.17 Yet the proponents of a stronger
article 2 won a delayed victory as the constitution as amended nine
years later to make the principles of the Islamic sharia the principal
source of legislation. As amended, article 2 of the Egyptian consti-
tution now proclaims, “Islam is the religion of the state, Arabic is
its official language and the principles of the Islamic sharia are the
principal source of legislation.” Thus Egypt has joined other Arab and
Islamic countries in providing explicitly for a link between the Islamic
sharia and legislation.
Adoption of the new formula set off a debate in which even advo-
cates of a greater role for Islam in political life found themselves
divided. Some jurists charged that the change was unnecessary because
as long as the Constitution provided that Islam is the religion of the
state, then the state is constitutionally Islamic. Thus, they argued, all
acts of government and public powers were already required to be
in line with the sharia. A further constitutional provision on Islamic
sharia principles, whether as a source or principal source of legislation,
did not really add much to this understanding and was occasioned by
the desire to appeal to public opinion rather than effect real change.
The opposing view, however, was that elevating sharia principles to
become the principal source, not merely a main source, of legislation
carried significant meanings and implications. Before the amendment,
Islamic sharia principles were seen as merely one of several unspeci-
fied main sources of legislation, with the more ambitious wording,
beside which other main sources did exist. Other subsidiary sources
of legislation would remain valid, but they would be accorded lower
importance in the amended article 2.
This debate might have attracted little attention—and the skep-
tics about the effectiveness of amending the text might have been
vindicated—had it not been for a more subtle and little noticed

change in Egypt’s constitutional order. In 1969, President Nasser
had moved against the country’s judiciary and dismissed a large num-
ber of sitting judges. He also constructed by decree a new “Supreme
Court” to sit at the apex of Egypt’s judicial structure in a thinly
disguised bid to establish firm presidential control over the judi-
ciary. That body was renamed the “Supreme Constitutional Court”
in the 1971 constitution, but matters of its organization were left
to ordinary legislation. Not until 1979 was that legislation enacted,
but when it was, it created a potentially autonomous body—while
the president retains some significant appointment authority over the
chief justice, the Court began to strike out in a fairly independent
direction in the 1990s.
In a series of decisions, the Court has pursued a consistent inter-
pretation of the revised article.18 While not robbing the provision of
all of its content, the Court has not used it to enforce real limits on
Egyptian legislation and the legal order. In effect, the Islamic sharia
has increased in symbolic importance, but political authorities have
found few obstacles placed in their path by the revised article. Indeed,
the Court has actually authorized the executive and the parliament to
develop binding interpretations of Islamic law. Granting such author-
ity makes it very unlikely that article 2 can serve as the basis for an
ambitious Islamic constitutionalism in Egypt.
While the amended text is open to numerous interpretations, the
decisions of the Court endorse the argument that it prohibits any leg-
islation that explicit contravenes the Islamic sharia. This reading of the
revised text is hardly inevitable, and it seems to hand the advocates of
the application of the sharia a tremendous victory. Yet the decisions of
the Court have had the precise opposite effect; as of this writing, only
one law has been struck down primarily on the basis of article 2. Why
has the strengthened version of article 2, interpreted by the Court to
bar legislation contravening the sharia, had so little effect?
First, in an early case, the Court ruled that the revised article barred
legislation contravening the sharia only after the date of the amend-
ment. In other words, the text revised in 1980 contained instruc-
tions to the legislature to base its subsequent work on the principles
of the Islamic sharia. Preexisting legislation should be reviewed to
ensure its compatibility with the sharia and amended if necessary, but
the amendment did not immediately require the Court to invalidate
such laws.
More important in the long run, the Court has endorsed a mod-
ernist view of the sharia that distinguishes between two kinds of
206 Nathan J. Brown
sharia-based rules: those unambiguously established both in their

authenticity and their meaning, and those based on more malleable
applications of sharia-based principles. Legislation incompatible with
an unalterable principle is invalid. On the other hand, the executive
and legislative authorities are given wide latitude in cases where the
sharia provides unclear or multiple answers.
The Court has articulated this principle on numerous occasions.
In 1996, for instance, a father brought a case to the Court involving
an administrative decree issued by the Minister of Education barring
female students from wearing the niqab (a veil covering the full face
in contradistinction to the permitted hijab, a veil covering only the
hair) in state schools. The proponents of a sharia-based constitutional
jurisprudence finally seemed to have a strong case. The challengers
could cite not only article 2, but also personal rights provisions of the
constitution. The father claimed that the minister’s decree violated
both the Islamic sharia and the rights of a liberal provenance. The
Court rejected the claim, however, laying out once again a view that
grants executive and legislative authorities tremendous latitude—it
insisted that only sharia principles that were absolutely authentic
and unambiguous could be used to strike down legislation. In all
other matters, authorities were free to adopt any interpretation of
the sharia (or develop their own) based on their discernment of the
public interest.19
An attempt to use article 2 as the basis for the application of a sharia-
based law must now encounter a formidable barrier in the Court. Its
view is not novel. Others routinely distinguished between unalterable
sources of law (the Koran and the Sunna), on the one hand, and those
based on human judgment, on the other. The Court’s view invalidates
any sharia provision based on the latter—and thus much of the body
of existing fiqh—as a basis for a constitutional claim. Indeed, it might
be possible to escape some clear statements from the Koran and the
Sunna if it can be argued that they are obviously of a particular and
time-bound rather than general nature (while the Court has never
advanced such an argument, some Islamists actually have). It should
be no surprise, therefore, that the Court has only been able to rely pri-
marily on article 2 to strike down legislation only once. (The decision
came in a difficult and controversial ruling on rights to housing after
a divorce in which the Court found that the personal status law had
infringed on the husband’s rights under the sharia. The case took the
Court an uncharacteristically long period—ten years—to resolve.20)
Most remarkable, perhaps, the judgment of whether a rule is a per-
manent and unalterable principle rests not with scholars of the sharia
but with secularly trained judges. The piety of individual members of

the Court, even if beyond question, would not compensate for their
lack of training in the minds of many sharia advocates. Granting such
deference to the existing authorities translates into the Islamic sharia
having only the vaguest limit on state authority.
I r aq
Never has a constitution been so bound up with sovereignty as in
Iraq after the American invasion of 2003. The connection between a
constitution and sovereignty was not clear at the beginning—it took
months for the Americans to announce any clear benchmark for end-
ing their direct administration of the country. But in July 2003, the
United States finally declared that full sovereignty would be restored
with the promulgation of a democratic constitution and the subse-
quent holding of national elections. A prolonged political contest
resulted, however, in a two-stage constitutional process. In the first
stage, a Transitional Administrative Law (TAL), written in 2004 in
secret by a small group of American and Iraqi officials, served as an
interim constitution. The TAL also established the framework for the
second stage of constitution writing, the composition and promulga-
tion of Iraq’s permanent constitution in 2005.
The drafters of both the TAL and the permanent constitution faced
few issues as contentious as the role of Islam in the new Iraqi politi-
cal system. Before the American invasion, Iraq had stood aloof from
the regional trend of proclaiming general obeisance to the Islamic
sharia in its constitution, although the interim constitution of 1964
did describe Islam as “the basic foundation” of the constitution. But
Islamist forces of various stripes were emerging as among the most
powerful and active in postinvasion politics.
While much of the TAL was drafted in a very closed process, the
debate over its provisions for Islamic law spilled out into public view.
Some of the more enthusiastic advocates of the Islamic sharia wished
to add a clause along the lines of the Egyptian constitution proclaim-
ing the principles of the Islamic sharia “the principal source of leg-
islation.” More secular drafters were willing to name the sharia as a
source of law, but they balked at making it the only or the principal
source. The final, fairly tortured compromise read, “Islam is the offi-
cial religion of the State and is to be considered a source of legislation.
No law that contradicts those fixed principles of Islam that are the
subject of consensus, the principles of democracy, or the rights cited
in Chapter Two of this Law may be enacted during the transitional
208 Nathan J. Brown
period. This Law respects the Islamic identity of the majority of the
Iraqi people and guarantees the full religious rights of all individuals
to freedom of religious belief and practice.”
What sharia advocates lost (Islam was mentioned but the sharia
was not, and Islam was only a source of law) was compensated for
by the bar against any law that contradicted the fixed principles of
Islam. But those fixed principles were not specified, nor was any
structure brought into being to determine them. The reference to
“consensus” presumably indicated that religious scholars might be
consulted—the consensus of scholars is a major source of law for
Sunni Muslims (and a secondary one for the Shi‘a)—though the
TAL provided no mechanism by which scholarly consensus could be
authoritatively expressed.
Elections for National Assembly—a body charged with writing
the permanent constitution—were held under the TAL provisions on
January 30, 2005, and immediately afterward the debate over the role
for the Islamic sharia began again. This time, it involved not simply
various Iraq parties but also heavy international pressure, chiefly com-
ing from the United States, which—despite having ended its direct
administration—played an extensive and quite public role during the
constitutional drafting process.
Remarkably, the debate over sharia in Iraq was at best fairly hazy on
who is authorized to speak for the sharia and how their assessments
are to be applied. The various actors did not seem to realize the lesson
of decades of experimentation—namely, that the Islamic sharia is not
an easily identifiable set of rules that can be mechanically applied, but
a long and quite varied intellectual tradition.
The final wording of the second article of the Iraqi constitution
follows a path similar to that of the TAL, but with some changes
in wording:
Islam is the official religion of the State and is a foundation source of

legislation. No law may be enacted that contradicts the fixed elements
of the rulings of Islam. No law may be enacted that contradicts the
principles of democracy. No law may be enacted that contradicts the
rights and basic freedoms stipulated in this Constitution. This Con-
stitution guarantees the Islamic identity of the majority of the Iraqi
people and guarantees the full religious rights to freedom of religious
belief and practice of all individuals such as Christians, Yazidis, and
Mandean Sabeans.
It was fairly common during the constitutional debate to refer

to the inclusion of references to both Islam and democracy as
“contradictory.” That characterization probably goes too far, but

there are some tensions in the final language that reflect uneasy
compromises—and not just between Islam and democracy. The
more subtle tension reflects the contest between those who wished
to make reference to the “fixed elements” (thawabit)—which, like
the principles mentioned by the Egyptian Supreme Constitutional
Court, would presumably be very general and fairly few in number,
given the diversity of the Islamic heritage—and those who favored
protecting “rulings” (ahkam), a far more specific and clearly legal,
not only religious, term with potentially expansive implications. The
final language includes both.
It is not clear precisely what the effect of combining these vari-
ous terms will be. In the short term, the article is likely to have little
practical impact. The wording suggests that the provision might only
apply to legislation passed after the constitution is adopted (although
the opposite interpretation is not implausible, either) so that the exist-
ing Iraqi legal order is likely to remain intact. The impact on future
legislation is completely dependent on who has authority to interpret
the article. The primary burden, at least in theory, would seem to fall
on the parliament: It is to use Islam as a source for legislation and take
care to avoid violating the fixed rulings of the religion. And the parlia-
ment is quite likely to be dominated by Islamist parties and influenced
informally by leading Shi‘ite clerics. At least at present, such clerics
give fairly few specific instructions, but it is clear that when they do so,
any government would have difficulty ignoring them (as Paul Bremer,
the American administrator of Iraq immediately after the invasion,
discovered). A Supreme Federal Court created to adjudicate constitu-
tional disputes would probably be called on to play a major interpre-
tive role as well, and the composition of that body is therefore critical
for the meaning of the article in the long term. But the composition
of that Court is left to legislation to determine.
C o nclusi on
Attempts to build constitutional orders that incorporate Islam have
realized symbolic triumphs but had little practical effect. The reason
is not because of any contradiction between Islamic and constitu-
tionalist approaches to law and politics, but because of an inattention
to procedural and practical details. The centerpiece of most Western
constitutional experiments has been documents that emphasize pro-
cedural aspects of constitutionalism. Even substantive limitations on
state authority are often expressed in procedural terms (the American
210 Nathan J. Brown
constitution guarantees freedom of the press, for instance, by barring

Congress from passing a law abridging it). Islamic constitutionalists
portray the Islamic sharia less as a procedural than a substantive limita-
tion on the authority of rulers. The weakness of procedural aspects in
Islamic legal thought has not gone unnoticed, and some Islamic intel-
lectuals have attempted to address it by elevating the importance of
ideas such as consultation. Yet when putting these ideas into practice,
the constitutional experiments in Egypt and Iraq have encountered
the same problem: in both cases, attempts to use the Islamic sharia as
the basis of a more authentic constitutionalism resulted in the imposi-
tion of few procedural restraints on rulers.
A Western constitutionalist might suggest that combining the
authority to rule with the authority to interpret the sharia is the prob-
lem. For a system to be truly constitutional—for rulers to be truly
bound by a higher law—the two functions must be separated. Many
Muslim thinkers have shied away from this conclusion for many rea-
sons. Some of them are suspicious of attempts to regulate political
authority by establishing institutionalized rivalries; such efforts would
seem to promote disunity. Others, especially Sunni thinkers, have
rejected the idea that any human has the authority to issue authori-
tative interpretations of Islamic law. If rulers need an authoritative
interpretation they are free to adopt one for the moment, but they
cannot impose their judgment on any scholar. Authorizing an indi-
vidual or body to issue binding judgments risks freezing Islamic law
and enshrining the views of fallible individuals as definitive.
The Arab experience does not show that Islamic constitutional-
ism must fail. But it does raise the importance of the skeptical ques-
tions suggested by Western constitutionalist practice: How can one
apply divinely inspired law without giving authority to human beings?
And how can human beings be held accountable to divine standards?
The answers to these questions must be given institutional expression.
Western constitutionalism has concentrated much effort on analogous
procedural questions. In short, Islamic constitutionalists have yet to
succeed not because they have borrowed too much from Western
constitutionalism, but because they have borrowed too little.
Notes
1. The mixture of such functions in a single body was quite common in
Europe at the time, of course, but those states that were devising written
constitutions did so partly to avoid such a practice.
2. For a general articulation of the ideology behind the constitution by one

of its primary advocates, see the writings of Khayr al-Din al-Tunisi. His
major treatise on the subject has been translated into English in L. Carl
Brown, The Surest Path: The Political Treatise of a Nineteenth-Century
Muslim Statesman, a Translation of the Introduction to the Surest Path
to Knowledge Concerning the Condition of Countries by Khayr al-Din
al-Tunisi, Harvard Middle Eastern Monographs 16 (Cambridge, MA:
Harvard University Center for Middle Eastern Studies, 1967).
3. For instance, the addition of an upper house to the Egyptian parliament
in 1979 was given some Islamic coloration by designating it the majlis
al-shura, or Consultative Council. The Saudi Basic Law of 1992 uses
such vocabulary more extensively.
4. The text of the document can be found in Al-dasatir al-misriyya 1805–
1971: nusus wa-tahlil [The Egyptian Constitutions 1805–1971: Texts
and Analysis] (Cairo: Markaz al-tanzim wa-l-mikrufilm, 1976). See also
Juan R. I. Cole, Colonialism and Revolution in the Middle East: Social
and Cultural Origins of Egypt’s ’Urabi Movement (Princeton, NJ: Princ-
eton University Press, 1993), 105; and Alexander Scholch, Egypt for the
Egyptians! The Sociopolitical Crisis in Egypt 1878–1882 (London: Ithaca
Press, 1981), 213.
5. Eugene Rogan mentions a 1920 “Constitution of the Arab Govern-
ment of Moab” in Frontiers of the State in the Late Ottoman Empire
(Cambridge: Cambridge University Press, 1999), 251. The constitu-
tional efforts of the Tripoli Republic, partly negotiated with Italy, are
treated in Karim Mezran, “Constitutionalism in Libya,” in Islam and
Constitutionalism, ed. Sohail Hashmi and Houchang Chehabi (Place:
Publisher, forthcoming).
6. The most comprehensive source for constitutional documents can be
found at http://www.servat.unibe.ch/law/icl/index.html.
7. Scholarly writings on the Ottoman constitution of 1876 are reasonably
extensive, but because of the declining interest among scholars in legal
and political history, the most comprehensive works tend to be older.
The account here depends primarily on such older works, including Rob-
ert Devereux, The First Ottoman Constitutional Period: A Study of the
Midhat Constitution and Parliament (Baltimore: Johns Hopkins Press,
1963); Roderic H. Davison, “The Advent of the Principle of Represen-
tation in the Government of the Ottoman Empire,” in Essays in Otto-
man and Turkish History, 1774–1923: The Impact of the West (Austin:
University of Texas Press, 1990); Roderic H. Davison, Reform in the
Ottoman Empire 1856–1876 (Princeton, NJ: Princeton University Press,
1963); and Stanford J. Shaw and Ezel Kural Shaw, History of the Ottoman
Empire and Modern Turkey, vol. 2, Reform, Revolution, and Republic:
The Rise of Modern Turkey, 1808–1975 (Cambridge: Cambridge Uni-
versity Press, 1977). See also Bernard Lewis, The Emergence of Modern
Turkey (Oxford: Oxford University Press, 1968); and Nader Sohrabi,
212 Nathan J. Brown
“Historicizing Revolution: Constitutional Revolutions in the Ottoman

Empire, Iran, and Russia, 1905–1908,” American Journal of Sociology
100 (May 6, 1995): 1383–1447.
8. Not only did the Ottoman sultan promulgate and suspend the constitu-
tion at will, he also made clear that he did not regard his authority as
bound by the constitution. For instance, he claimed the right to issue
legislation completely outside of the constitutional framework, insisting
that the constitutional procedures governed only legislation that went
through the parliament. Few current rulers would be so bold in doc-
trine, but many executives in the Arab world have retained constitutional
mechanisms for bypassing parliamentary and other institutions.
9. The minutes of the drafting committee have been preserved, allowing
us some insight into the intentions of the drafters. See the discussion of
article 149 in Majlis al-Shuyukh, Al-dustur: ta’liqat ’ala mawadihi bi-
l-a’mal al-tahdiriyya wa-l-munaqashat al-barlamaniyya, part 3 (Cairo:
Matba’at Misr, 1940).
10. Ibid., part 1, discussion of article 13.
11. See Nathan J. Brown, “Shari’a and State in the Modern Middle East,”
International Journal of Middle East Studies 29 (August 1997).
12. In the debate over the adoption of the first Moroccan constitution, for
instance, the opposition was able to cite the opinion of a leading Islamic
scholar criticizing the document because it assigned a greater right to
legislation to the state than should exist in an Islamic system. See Charles
F. Gallagher, “Toward Constitutional Government in Morocco: A Ref-
erendum Endorses the Constitution,” American Universities Field Staff,
North Africa Series 9, no. 1 (Morocco, 1963), 7. For a very different
example, see the discussion of women’s suffrage in “Women in the Con-
stitutional Committee,” Ruz al-yusuf, October 19, 1953, 13. At that
time, a committee drafting a constitution for Egypt was considering the
right of women to vote. Some committee members unsuccessfully cited
Islamic grounds for opposing this right.
13. Ahmad Majid Binjalun, Al-dustur al-maghrabi: mabadi’ihi wa ahkamihi
(Casablanca: Dar al-Kitab, 1977), 151–52.
14. Article 153. For the text, see Albert P. Blausetien and Gisbert H. Flanz,
eds., Constitutions of the World (Dobbs Ferry, NY: Oceana Publications,
updated periodically).
15. On the Syrian constitution of 1950, including article 3, which described
the Islamic sharia as the chief source of legislation, see Majid Khadduri,
“Constitutional Development in Syria,” Middle East Journal 5, no. 2
(Spring 1951), 137–160. Ironically, Syria later made Arab constitutional
history when a constitution was proposed that removed the requirement
that the head of state be a Muslim.
16. On this point more generally, see Nathan J. Brown, “Judicial Review in
the Arab World,” Journal of Democracy 9 (October 4, 1998), 85–99.
17. See Jamal al-’Utayfi, Ara’fi al-shari’a wa-fi al-hurriyya [Opinions on

the Sharia and Freedom] (Cairo: Al-hay’a al-misriyya al-’amma li-l-kitab,
1980); Joseph P. O’Kane, “Islam in the New Egyptian Constitution:
Some Discussions in al-Ahram,” Middle East Journal 26, no. 2 (1972):
137–48; and Minutes of the Preparatory Committee for Drafting the
Constitution [for the Arab Republic of Egypt, 1971], Library of the
Majlis al-Sha’b, Cairo.
18. See Clark B. Lombardi and Nathan J. Brown, “Do Constitutions
Requiring Adherence to Sharia Threaten Human Rights? How Egypt’s
Constitutional Court Reconciles Islamic Law with the Liberal Rule of
Law,” American University International Law Review 21, no. 3 (2006),
379–436.
19. The ruling is translated in Nathan J. Brown and Clark B. Lombardi,
“The Supreme Constitutional Court of Egypt on Islamic Law, Veiling,
and Civil Rights: An Annotated Translation of Supreme Constitutional
Court No. 8 of Judicial Year 17 (May 18, 1996),” American University
International Law Review 23, no. 3 (2006), 437–60.
20. Case No. 5 of Judicial Year 8 (submitted in 1986; decided in 1996).
Chapter 11
Reli gion and State in

the State of Israel
David H. Goldberg and Bernard Reich
T homas Jefferson’s “wall of separation between church and state”

is difficult to find in the State of Israel. Israel is different in many
respects from every other country in the modern world in its concept
of, and application of, the separation of church and state.
There is no established state religion in the Jewish state, yet Juda-
ism and Jewish religious political parties, as well as various other things
“Jewish,” play significant roles in the daily functioning of Israel and its
institutions and policies.
I ntro duc ti on
Israel is self-designed as a Jewish state. But Israel is also a state and soci-
ety constructed on modern democratic principles. Israel has no official
religion and there is constitutionally guaranteed freedom of religious
practice and access to religious institutions for all faith communities.
However, unlike many other democratic states that ostensibly impose
a Jeffersonian separation between religion and state, religious issues
(narrowly and broadly defined) permeate all aspects of life in Israel.
The early Zionist settlers were generally secular in religious ori-
entation and, indeed, the political Zionist enterprise of establishing
a modern sovereign Jewish state in Eretz Israel (the Land of Israel)
216 David H. Goldberg and Bernard Reich
faced considerable opposition from the established indigenous reli-

gious Jewish community on theological grounds. The overwhelm-
ingly Orthodox Jewish community resident in Israel in the nineteenth
century broadly believed that the return of the Jews to the Holy
Land would be accomplished by God, not by a group of essentially
secular, socialist (albeit “Jewish”) Zionists.
Nevertheless, the modern Jewish nation state called “Israel,” cre-
ated by the Zionists was replete with symbols directly borrowed from
Jewish religious tradition and Jewish history: the Star of David, the
menorah on the state symbol, respect for central aspects of Jewish law
(halacha), the Sabbath and kashrut (Jewish dietary law), the names
applied to national institutions, and indeed, the conscious decision to
transform the ancient language of the Torah and Jewish religion into
the official language and the lingua franca of a modern nation state.
The Hebrew language today is a rich and growing language dealing
with all aspects of modern life in Israel, in addition to being the lan-
guage of Jewish prayer and religious observance.
Universalism within Particul ar ism

Despite its Jewish religious roots and self-identification as a Jewish
state, Israel guarantees all of its citizens—in law and in practice—free-
dom of religion and conscience and considerable autonomy utilizing
the millet system inherited from the Ottoman Empire (and modified
by Great Britain under the League of Nations Mandate for Palestine).
The Israeli Declaration of Independence (May 14, 1948) addresses
explicitly and at length Israel’s commitment to respect and encour-
ages religious pluralism and tolerance:
[Israel] will foster the development of the country for the benefit of all
its inhabitants; it will be based on freedom, justice, and peace as envis-
aged by the prophets of Israel; it will ensure complete equality of social
and political rights to all its inhabitants irrespective of religion, race, or
sex; it will guarantee freedom of religion, conscience, language, educa-
tion, and culture; it will safeguard the Holy Places of all religions; and it
will be faithful to the principles of the Charter of the United Nations.
The religious authorities of each non-Jewish faith community

(Christian, Muslim, Druze, and others) exercise jurisdiction in all mat-
ters involving personal status and family law (i.e., marriage, divorce,
alimony, and inheritance) and apply religious codes and principles in
their own courts.
Religion and State in the State of Israel 217
Co ns titutional Di lemma
Israel is today a country without a formal written constitution. It
depends on a series of Basic Laws that are ultimately intended to form
a constitution. The Constituent Assembly in February 1949 enacted a
Transitional Law (referred to as a “Small Constitution”) that became
the basis of constitutional activity in the state. It was anticipated that
the document would be replaced by a more extensive one. The first
Knesset (parliament) devoted substantial time to a discussion of the
constitutional issue. Numerous matters were considered and dis-
cussed, including the concern about the relationship between the
state and religion and the related matter of somehow ensuring that
the ideals and precepts of Judaism would be incorporated into the
proposed constitution of the Jewish state.
The Constituent Assembly could not agree on a comprehensive
written constitutional document, mostly because of concerns that a
constitution could unleash a divisive conflict between religious and
state authorities. How would one protect the rights of the various
non-Jewish communities and the rights of those Jews who were “sec-
ular” (i.e., non-Orthodox) in their approach to religious observance
while still permitting those of an Orthodox Jewish background to
pursue their own approach to religious life?
After a lengthy discussion, the Knesset decided, on June 13, 1950,
that in the interim period (until they were ready for the final written
document) there would not be a formal and comprehensive docu-
ment. There was accord on several related matters, including a state
based on “Jewish” principles and concepts and, significantly, the
“ingathering of the exiles”—that is, the return of the Jewish people
scattered throughout the world in the Diaspora to the historic Jewish
homeland—the Land of Israel.
Law o f Retur n
Zionism (Jewish nationalism) as a political solution to anti-Semitism
was enshrined in Israel’s Declaration of Independence:
The catastrophe which recently befell the Jewish people—the massacre

of millions of Jews in Europe—was another clear demonstration of the
urgency of solving the problem of its homelessness by reestablishing in
Israel the Jewish State, which would open the gates of the homeland
wide to every Jew and confer upon the Jewish people the status of a
fully privileged member of the community of nations.
Survivors of the Nazi Holocaust in Europe, as well as Jews from

other parts of the world, continued to migrate to Israel, undaunted
by difficulties, restrictions and dangers, and they never ceased to assert
their right to a life of dignity, freedom, and honest toil in their national
homeland.
That led to the practical problem of what might be done about the
remnants of the Jewish communities in Europe after the Holocaust (in
addition to entire Jewish communities forced from their homes and
properties in Arab countries by anti-Zionist rioting around the time of
Israel’s founding).1 Israel’s response was the Law of Return—a Jewish
solution to a Jewish problem. Those who were Jews would be given
special status should they choose to immigrate to the Jewish state.
Identifying who was a Jew became another element of the situation.
Traditional Jewish law was applied by government ministers and min-
istries, placing the government as an agent of implementing halacha.
The Law of Return 5710–1950, adopted by the First Knesset on
July 5, 1950, declared,
1. Every Jew has the right to come to this country as an oleh (immi-
grant). 2. (a) Aliya (Immigration) shall be by oleh’s visa. (b) An oleh’s
visa shall be granted to every Jew who has expressed his desire to settle
in Israel, unless the Minister of Immigration is satisfied that the appli-
cant (1) is engaged in an activity directed against the Jewish people;
or (2) is likely to endanger public health or the security of the State.
3. (a) A Jew who has come to Israel and subsequent to his arrival has
expressed his desire to settle in Israel may, while still in Israel, receive
an oleh’s certificate.
The Law of Return (Amendment 5714–1954) adopted by the Sec-

ond Knesset on August 23, 1954, transferred responsibility for the
implementation of the Law of Return from the Minister of Immigra-
tion to the Minister of the Interior.
The Law of Return (Amendment 5730–1970) adopted by the Sev-
enth Knesset on March 10, 1970, in addressing the “rights of mem-
bers of family,” entrenched the Orthodox principles of matrilineal
descent and conversion through the Orthodox stream as the exclusive
bases for defining a “Jew”:
4A. (a) The rights of a Jew under this Law and the rights of an oleh
under the Nationality Law, 5712–1952, as well as the rights of an oleh
under any other enactment, are also vested in a child and a grandchild
of a Jew, the spouse of a Jew, the spouse of a child of a Jew, and the
spouse of a grandchild of a Jew, except for a person who has been a Jew
and has voluntarily changed his religion . . . . 4B. For the purposes of
this Law, “Jew” means a person who was born of a Jewish mother or
has become converted to Judaism and who is not a member of another
religion. 5. Regulations for the purposes of sections 4A and 4B require
the approval of the Constitution, Legislation, and Juridical Committee
of the Knesset.
The Population Registry Law 5725–1965 was simultaneously

amended by the Seventh Knesset on March 10, 1970 to address
the “definition” of immigrants (olim) under the amended Law of
Return:
3A. (a) A person shall not be registered as a Jew by ethnic affiliation or

religion if a notification under this Law or another entry in the Registry
or a public document indicates that he is not a Jew. . . . (b) For the
purposes of this Law and of any registration or document thereunder,
“Jew” has the same meaning as in section 4B of the Law of Return,
5710–1950.
The definition of a “Jew” for purposes of immigration to Israel

under the Law of Return, as well as for marriage, has stood at the cen-
ter of many of the debates over religion and state in Israel, as has the
dominance of the Orthodox stream of Judaism over such issues—and
over most other aspects of Israeli culture and society.
D ebates over Reli g i on and the State

Throughout the development of modern political Zionism, during
the prestate period when the yishuv governed in Palestine, and in
the postindependence period there were continued discussions and
debates about the relationship of Israeli democracy and Jewish reli-
gious tenets and perspectives. There were significant rifts on politics
and ideology and the role of religion in the state.
Socialist-oriented Zionists generally envisioned a socialist and dem-
ocratic state with a flourishing secular Jewish culture while religious
institutions and religious concepts and tenets would be fully protected
by law. Religious Zionists thought about a more theocratic state in
the land promised by God to the Jewish people (and recorded in the
Bible and other Jewish texts and related in Jewish traditions) where
Jews could live full religious lives guided by Jewish religious leaders
with substantial power to ensure this approach.
“Who Is a Jew?”
The religion-state debate in Israel rotates on the issue of who among
those seeking access to the country under the Law of Return meets
the criteria to be defined as a “Jew.” The issue is actually multilay-
ered. There is the issue of the state serving as an agent of determining
and implementing questions of halacha. There is the extent to which
the government ministries responsible for such matters—immigra-
tion, interior, and religious affairs—were the private reserves of the
religious parties for most of Israel’s first fifty years, thereby ensuring
an Orthodox application of the Law of Return. And, finally, there
is the way in which the force of events over the past one and one-
half decades—especially Israel’s absorption under the Law of Return
of more than one million immigrants from the former Soviet Union
and Eastern Europe and from Ethiopia—have tested the limits of the
existing definition, in law and in practice, of “who is a Jew.” Israel has
had to come to terms with the reality of hundreds of thousands of new
immigrants who, upon closer examination, did not meet the definition
of a “Jew” according to the Orthodox interpretation of halacha. In
1988, Ya’acov Ne’eman, then Benjamin Netanyahu’s finance minis-
ter, was appointed to head a committee to address this dilemma. One
result of the deliberations of the Ne’eman committee was the estab-
lishment of “conversion institutes” in which new immigrants seeking
conversion to Judaism would receive training from rabbis and teachers
representing the three major streams of Judaism (Orthodoxy, Con-
servatism, and Progressive/Reform), although the final conversion
would still be according to Orthodox standards. While there remains
considerable Orthodox resistance to non-Orthodox or civil marriages,
the “conversion institutes” experiment represents one small effort on
the part of representative segments of Israeli society to reconcile the
religious debate.
Status Quo Agreement

Israel’s religious structure stems partly from a controversial compro-
mise to obviate clashes that took the form of a so-called status quo
agreement worked out by Israel’s first prime minister David Ben-Gur-
ion with Orthodox and some ultra-Orthodox religious leaders and
religious parties on the eve of Israel’s independence. The agreement
proposed to retain the situation as it had existed upon independence,
whereby individuals would be free to pursue their religious practices
in private as they saw fit, while in the public domain there would be no
changes in the prevailing situation. This arrangement thus continued

the Ottoman millet system, which allowed each religious community
a high degree of local autonomy. The status quo agreement allowed
the Orthodox community to maintain and expand its efforts to assert
control over various aspects of life among Jewish Israelis, periodically
engendering public conflict and discussion.
Military Deferments
A particularly controversial dimension of the status quo agreement
related to the granting of deferments from service in the Israel Defense
Forces (IDF) for men studying in ultra-Orthodox rabbinical institu-
tions. To the minds of most observers, this was an obvious example of
systemic inequality. In December 1998, Israel’s Supreme Court ruled
that the agreement between Ben-Gurion and the Orthodox commu-
nity to grant military exemptions to yeshiva students was unconstitu-
tional; the court gave the Knesset one year in which to formulate new
legislation effecting such deferrals. During the Fourteenth Knesset
(1996–99), Israeli Labor Party leader Ehud Barak pledged to intro-
duce legislation that would effectively end most exemptions from
military duty on religious grounds. The challenge of actualizing this
promise was a key element of Barak’s coalition negotiations with the
religious parties after his 1999 election. In the end, Barak was forced
to back down. In mid-December 2005, legislation was adopted to
introduce a form of “national service” for those segments of Israeli
society, including Orthodox rabbinical students, who felt unable or
unwilling to serve in military units on religious or ethical grounds.
On May 11, 2006, the Supreme Court determined that the legisla-
tion (known as the Tal Law) permitting most exemptions from mili-
tary service for what is now an estimated 50,000 haredi rabbinical
students contravenes the human dignity of those who serve in the
Israeli military. But the court determined that the law should be left
untouched for an additional eighteen months in order to examine if
its application would improve. On July 18, 2007, the Knesset decided
on an extension of the Tal Law for another five years until 2012. This
effectively left in abeyance efforts to breach the large societal chasm
caused by religious military exemptions.
Hesder Yeshivot
A creation of Israel’s dati (national religious) community, the Hesder
yeshiva system effectively bridges the societal chasm by combining
Orthodox rabbinical studies with military service in the IDF. Hes-

der service normally lasts five years, during which time participants
are officially soldiers in the IDF. Through those five years, sixteen
months are dedicated to actual military service, comprising both
training and active duty. Almost all Hesder yeshiva students serve in
the army as combat soldiers, with a growing number reaching officer
rank. The first Hesder yeshiva was founded in 1953; today there are
forty-one spread throughout Israel. In 1991, the Hesder yeshivot sys-
tem was awarded the Israel Prize for its exceptional contribution to
the nation.
Th e R el igio us Poli ti c al Parti es

The religious-secular debate in Israel has increasingly been played out
in the electoral process and expressed in the formation and dissolution
of political parties and electoral coalitions. Only in 1999, in the elec-
tion to the Fifteenth Knesset, was there a secular party that explicitly
targeted only the secular factor in the debate. And that party, Shinui,
disappeared in the 2006 election to the Seventeenth Knesset, largely
because the shrillness of its attack on the haredi parties was considered
too extreme and too divisive by an Israeli electorate seeking points of
national consensus in the aftermath of the traumatic 2005 disengage-
ment of Israel from Gaza.
Parties with a religious orientation have always played a major role
in the electoral process and, hence, in Israel’s political life. Many of
these religious political parties arose as a direct response to the emer-
gence of political Zionism at the end of the nineteenth century, and a
point of difference among them has been their perspectives on Zion-
ism. In the ultra-Orthodox camp were those parties who denied the
basic validity of the Zionist idea on the grounds that it contradicted
the traditional conception of divine, Messianic redemption of the
Jewish people. Nevertheless, some who opposed Zionism as a secular
nationalism encouraged Jews to settle in Israel as a means of fulfilling
a religious obligation for Jews to “return to” and reside in the Holy
Land. As historical developments2 made the idea of a modern Jew-
ish state more logical, more of the ultra-Orthodox who continued to
oppose Zionism began to recognize the importance of both Jewish
settlement in Israel and of the State of Israel itself to the survival of
the Jewish people.
The religious Zionists took an alternative approach. Guided by the
religious-nationalist philosophy of Rabbi Avraham Yitzhak Kook (the
first Chief Ashkenazi Rabbi of Palestine), the religious Zionists tended
to see Zionism as a solution to the problems faced by Jews in the Dias-

pora and the first stage in the messianic process. Thus Israel’s forma-
tion was, in their view, the beginning of redemption, and the process
became religiously significant. The above approach was reinforced by
Israel’s victory in the 1967 Six Day War and spawned movements
such as Gush Emunim (Bloc of the Faithful), which (under the spiri-
tual guidance of Rabbi Zvi Yehuda Kook, who modified his father’s
philosophy) linked Israel’s military accomplishments with both reli-
gious concepts and Zionist ideals.
During the first four decades of Israel’s statehood, the religious
political scene was dominated by two political parties: Miflaga Datit
Leumit (MAFDAL, the National Religious Party, or NRP) and Agu-
dat Yisrael (or Agudat Israel, Association of Israel). Their centrality
has been overtaken in recent years by a relative political newcomer,
Sephardi Torah Guardians (SHAS). Although the religious parties
drew support from parallel constituencies, only once, in the election
to the First Knesset in 1949, did they run as a single bloc (the United
Religious Front), which won sixteen seats.
In contrast to the ultra-Orthodox Agudat Israel, the NRP has par-
ticipated within the mainstream of Jewish life and the activities of the
state since Israel’s independence. The NRP was founded in 1956 as a
religious party seeking to combine religious concerns and a moderate
socialist orientation in economic matters within a Zionist framework.
The NRP’s origins lie in the prestate period. Its founders did not see
a contradiction between Judaism and Zionism. After independence,
the NRP became a significant partner in Israel’s governments, secur-
ing concessions on religious matters in exchange for support on mat-
ters of greater importance to the government, such as foreign and
defense issues. Consequently, it wielded substantial political power.
This power, combined with the pragmatism of many of its political
leaders, made the NRP a natural partner for virtually every Israeli
coalition government until the 1990s, in exchange for NRP control
of such influential domestic affairs portfolios as the interior ministry,
education, culture, and religious affairs. However, the party’s political
options narrowed by the late 1980s as it increasingly adopted a hard-
line nationalist stance in support of its constituency among the Jewish
settlers in the territories occupied since the 1967 Six Day War.
Agudat Israel (Aguda) focuses its attention on the religious nature
of the Jewish state and seeks to have Israel function in accordance with
the principle of the Torah. It is a religiously oriented political party
representing the interests of a section of Orthodox Jewry living both
within and outside the Jewish state. Established in 1912 in Kattowitz
(Katowice), Poland, Aguda was to be a Torah movement directed

by Moetzet Gedolei Hatorah (Council of Torah Sages), a group of
rabbinical scholars who represent the various factions of the Aguda
movement and are chosen for their scholarly merit and prestige in the
realm of Orthodox Jewry. Moetzet Gedolei Hatorah continues to be
the supreme decision-making body for Aguda adherents and its deci-
sions are sovereign in all questions affecting the membership, includ-
ing religious and political matters such as joining or remaining in a
government coalition. Even though Aguda initially opposed Zionism
as religiously unacceptable, in the 1930s and 1940s it cooperated with
the Jewish Agency and other bodies of the yishuv in several clearly and
specifically defined areas based on pragmatic considerations relating
to the need to try to save the persecuted Jews of Europe. Ultimately,
Aguda gave partial backing to the Zionist endeavor when it supported
the establishment of Israel and was represented in Israel’s first cabi-
net. The decision to move into the mainstream of Israeli politics led
to a split within Aguda, with its more conservative elements rally-
ing around the Satmar Rebbe who opposed Zionism and formed the
splinter Naturei Karta.
Aguda did not participate in any Israeli government from 1952 to
1977. During that period it neither displayed overt hostility to Israel
nor consistently opposed the state, though it generally did not concur
with the government. The Aguda supports the state and participates
in its institutions without necessarily accepting all of its policies. It
does not link Israel with the biblical promise of redemption. Rather,
it supports Israel because of a pragmatic perspective that sees the state
as vitally important to the survival of the Jewish people because of
worldwide conditions. Thus it respects the role performed by the IDF
in securing the defense of the Jewish state and the survival of the Jew-
ish people, even as it insists that men studying in Orthodox yeshivot
must be exempted from military service, lest their religious values and
sensitivities be tainted by coming in contact with the IDF’s secular
practices. At the same time, Jewish immigration to Israel (aliya) must
be encouraged for religious and practical reasons, though no “holy”
attributes are assigned to the state.
Throughout its political involvement, Aguda has been motivated
by its desire to ensure that no legislation would harm Orthodox inter-
ests and that its religious and educational institutions would receive
maximum support from the government. It has sought to secure
expansion of Torah institutions and Jewish law within the political
system and has focused its attention on such issues as financial support
for various religious institutions, education, and schools. Also, it has
worked on extending the religious perspective into essentially secular

realms such as military service for females and the question of “who
is a Jew,” which gets to the core of the Orthodox viewpoint and per-
spective. Furthermore, since the 1980s, Aguda has become strident
in its support for the Jewish settlers in the territories occupied in the
1967 war and in opposition to territorial concessions to the Palestin-
ians. To achieve its goals, the Aguda has been prepared to support
governing coalitions and to have members of the Knesset (MKs) serve
as deputy ministers, despite often uneasy alliances.3
The NRP and Aguda each have experienced internal divisions that
have become pronounced in recent years. Numerous factions, each
with its own leadership and agenda, compete to secure loyalty, votes,
programs, and political patronage.
In the 1981 election to the Tenth Knesset, the issue of ethnic rep-
resentation in Israeli politics led to the creation of Tenuah LeMas-
soret Yisrael (Movement for Jewish Tradition, or TAMI), an offshoot
of the NRP that was formed as a North African–oriented religious
political party. The new list won three seats, drawing support from
the Oriental community. TAMI’s success appeared to have a major
impact on the NRP, which saw its Knesset strength cut in half from
twelve to six seats. The NRP further splintered in 1984, when the
party’s right-wing Matzad faction broke away and joined with two
independent right-wing Knesset members to form the Morasha (Heri-
tage Party). Morasha won two seats in the 1984 election; the NRP
again lost ground, falling to four Knesset seats. Morasha, however,
collapsed in 1988 when Matzad left to rejoin the NRP.
The reintegration of the right-wing Matzad faction strengthened
the nationalist tendencies within the NRP; changes within the party
leadership also contributed to the NRP’s rightward shift. The NRP’s
new leadership was committed to retaining the occupied territories
and also took a less conciliatory position on domestic religious issues,
particularly the question of changing the Law of Return to recognize
only Orthodox conversions.
In response to the NRP’s rightward trend, party doves left in 1988
and formed the Meimad (Dimension Party) under the leadership of
Rabbi Yehuda Amital, the respected head of the hesder yeshivot move-
ment. While Meimad promotes the incorporation of Orthodox reli-
gious practices in Israeli life, it believes that this objective should be
accomplished through education and mutual accommodation rather
than the “coercive” measures used by the other religious parties.
The NRP has experienced several crises of conscience in recent years.
It was badly shaken by the fact that Yigal Amir, the assassin of Prime
Minister Yitzhak Rabin, was a graduate of the national religious yeshiva

system. There was then the controversy that arose when a small but
prominent group of national religious rabbis called on religious sol-
diers within the Israel Defense Forces, among them a growing number
of officers, to disobey orders from their commanders to participate in
the evacuation of settlers in the 2005 Gaza disengagement. While
the mass disobedience among religious soldiers did not materialize,
the very existence of the threat caused many critics to raise serious
questions about the future of the NRP in preserving Jewish values in
Israeli politics and society. Were the NRP and the national religious
Zionist philosophy that it had represented for almost a hundred years
still relevant to twenty-first-century Israelis? And had its progressive
nationalist drift since the 1980s placed the NRP outside of mainstream
Israeli popular opinion?
The ultra-Orthodox Aguda also underwent splintering and soul-
searching. In 1984, the former Sephardi Chief Rabbi Ovadia Yosef
and other Sephardi rabbis dramatically left the Ashkenazi-dominated
Aguda and established the Sephardi Torah Guardians (SHAS) after
Aguda leaders refused to place enough Sephardi candidates in safe
slots on Aguda’s list for the election to the Eleventh Knesset. Eliezer
Schach, a Lithuanian-born (and Ashkenazi) rabbi and leader of mis-
nagdim (non-Hasidic elements) within Aguda, helped to engineer
the creation of SHAS. Schach was primarily troubled by the influence
of Aguda’s Hasidic trends over its Sephardic followers and thought
the formation of a separate Sephardi ultra-Orthodox political party
would force Aguda’s Hasidic leadership to pay more attention to the
party’s non-Hasidic members.
SHAS’s rapid rise and growth in influence was impressive; the party
took four seats in the 1984 Knesset election, only months after its
formation, and moved to seventeen seats in the 1999 election. Ana-
lysts attributed the party’s success to Machiavellian resourcefulness
combined with the charismatic, populist appeal of its spiritual leader,
Rabbi Ovadia Yosef. By participating in the 1984–88 Government
of National Unity, SHAS controlled the interior ministry—tradition-
ally the bastion of the National Religious Party—which enabled it to
channel funds through local governments in providing services to its
constituency of haredi Sephardi Jews and, as a result, win additional
electoral support in subsequent elections. Also, SHAS exploited the
Sephardi-Ashkenazi ethnic split, stressing in its platform the restora-
tion of Oriental culture to a position of prominence in Israeli society.
Furthermore, the party benefited from having Rabbi Ovadia Yosef
as its mentor, a man who was popular even among non-Orthodox
Oriental Jews. Moreover, by opening its network of subsidized full-

day daycare centers, with hot lunches, to all Israelis, SHAS began
to gain the political support of religiously “traditional” Ashkenazi
families. Finally, critical to SHAS’s success has been Ovadia Yosef’s
legendary political wisdom, often reflected in his refusal to publicly
endorse any of the leading political parties or candidates for prime
minister in order to give SHAS maximum flexibility in postelection
coalition negotiations. What has also distinguished SHAS from the
other religious parties is its relative pragmatism with regard to foreign
policy. In the 1990s Ovadia Yosef declared his readiness, in principle,
to sanction Israeli territorial compromise if such actions would save
lives (based on the religious precept of pikuah nefesh).
Aguda was again split in 1988. This time, Eliezer Schach, the
Ashkenazi rabbi who had helped to engineer the creation of SHAS
four years earlier, left Aguda with his followers over what he saw was
the growing influence within the party of the Lubavitch Hasidic sect
and its leader, Brooklyn-based Rabbi Menachem Mendel Schneer-
son. On the eve of the 1988 election to the Twelfth Knesset, Schach
formed the rival ultra-Orthodox party Degel HaTorah (Flag of the
Torah). This development led Schneerson to mobilize his followers
to vote en masse for Aguda, resulting in Aguda winning five Knesset
seats, whereas Degel HaTorah took only two. Prior to the June 1992
election, Schach agreed to Degel HaTorah joining Aguda in a uni-
fied electoral list called United Torah Judaism. But the relationship
between the two segments of the Ashkenazi haredi party remained
tenuous, at best.
Despite their areas of discord, Israel’s religious political parties have
a common denominator: the effort to represent the interests of Israel’s
Orthodox and ultra-Orthodox communities. They share a loyalty to
traditional religious Judaism and realize the need to mobilize the reli-
gious community to prevent secular intrusion in the religious domain.
Also, they are determined to ensure the perpetuation of religious val-
ues and lifestyles in Israel and to retrench Orthodox domination over
non-Orthodox streams of Jewish religious practice. Partly because of
these concerns, the religious parties have created communal and edu-
cational frameworks to draw together those Jews who are faithful to
the Orthodox perspective. They may differ in their approaches to the
non-Orthodox society and views of Zionism, but they agree that there
must be no contradiction of halacha, and that Orthodox religious
interests must be preserved and enhanced.
The permanence of the religious parties and their continued partic-
ipation in Israel’s political process skews the religious-secular debate.
It also reflects the extent to which Israel does not fit the Jeffersonian
conception of the separation between religion and state.
Th e 2006 Pa r l iamentary (K nes set) Electi on

Significant aspects of the religious debate in Israeli society, culture,
and politics were vividly displayed in the campaign for the March
2006 election to the Seventeenth Knesset and in the results of the
ballots. For instance, the avowedly secularist Shinui party collapsed
largely because of internal discord over religious issues. A pragmatic
faction called for tempering Shinui’s divisive anticlericalism to make
the party more attractive to the large body of centrist “undecided”
Israeli voters, whereas Shinui stalwarts remained committed to a
firmly ideological platform that attacked the legitimacy of the Ortho-
dox and ultra-Orthodox parties. In the end the party could not sus-
tain such internal discord and Shinui failed to cross the threshold for
winning seats in the Seventeenth Knesset and disappeared from the
political landscape.
In the election, the religious parties were motivated by a desire
to retake ground lost to the secularists in the perpetual struggle to
define the character and soul of the Jewish state. All sought increased
state funding for Orthodox educational institutions and yeshivot, the
reversal of previous cutbacks on funding to large families (an issue of
particular and growing concern to the Orthodox and ultra-Orthodox
communities) in addition to the creation of a special “welfare pay-
ment” for large families, and the maintenance of the status quo affect-
ing deferments from military service for students in ultra-Orthodox
yeshivot and the Orthodox interpretation of halacha concerning mar-
riage and defining “who is a Jew.” They also sought tacit or explicit
commitments from the Olmert administration with regard to two
Israeli government institutions. First, they demanded measures to rein
in the Supreme Court that had—leaders of the Orthodox and haredi
communities contended—become increasingly assertive in interpret-
ing laws and establishing social values in ways that were contrary to
the interests of the Jewish state and the survival of the Jewish people.
Second, the religious parties sought to have control over religious
affairs, which had been devolved to various government ministries
and municipal authorities by a Labor-led coalition in the late 1990s
(in what the harediim viewed as an assault on their influence), again
consolidated in a reestablished ministry of religious affairs. It was with
respect to foreign policy that differences emerged among the religious
parties after the 2006 election.
A member of all coalitions since the 1990s, the ultra-Orthodox

SHAS party had experienced a decline in its political fortunes after
having been left out of Ariel Sharon’s government in 2003—a direct
result of the strident refusal of the anticlerical Shinui, holder of fif-
teen seats and the balance of power in the Sixteenth Knesset, to sit in
the same cabinet with ultra-Orthodox members of Knesset. Without
access to the funds and patronage that typically accrued to it through
cabinet appointments, SHAS’s popular support threatened to fray
at the margins. SHAS’s leaders, headed by revered spiritual mentor
Rabbi Ovadia Yosef and party chairman Eliyahu (Eli) Yishai, were not
willing to risk further slippage by being excluded from the new coali-
tion formed by Prime Minister Ehud Olmert. Emboldened by the
addition of one more seat than the eleven it held in the incumbent
Knesset (as well as by the self-destruction of its arch-rival Shinui),
SHAS immediately entered into coalition negotiations. Its demands
on domestic religious and social affairs were balanced by a relatively
pragmatic approach toward foreign policy. During the election cam-
paign, Ovadia Yosef had expressed his opposition to any further Israeli
unilateral territorial concessions along the lines of the 2005 Gaza dis-
engagement. At the same time, Eli Yishai acknowledged that retain-
ing all of the Jewish settlements in the West Bank in the framework
of a peace agreement with the Palestinians is unrealistic: “Talk about
holding onto all our settlements was relevant twenty years ago. . . .
Today it is outdated.” Both statements, reflecting broad-based Israeli
national consensus positions à la 2006, typified the flexibility that
permitted SHAS to enter the Olmert-led coalition government and to
support the general parameters of Olmert’s diplomatic initiative with
the Palestinians, in exchange for significant government concessions
to SHAS’s domestic agenda.
The National Religious Party approached the 2006 election weak-
ened and uncertain about its future. Its contingent of six seats in
the incumbent Knesset was reduced to four when party chairman
Efraim (“Effie”) Eitam and former leader Yitzhak Levy seceded in a
dispute about the party’s policy response to the Gaza disengagement.
Opinion poll data consistently suggested that, running on its own,
the NRP might fail to pass the 2 percent threshold for winning seats
in the next Knesset. At the last moment, the NRP entered a joint
list headed by the right-wing National Union Party. The National
Union campaign was focused exclusively on protecting the interests
of the West Bank settler community and blocking any further territo-
rial concessions; the platform was devoid of any religious content.
This hard right-wing orientation, combined with the fact that the
joint National Union–NRP list won only nine seats in the 120-seat
Knesset, eliminated it from participation in coalition talks with the
Olmert administration, thus further diminishing the NRP’s capac-
ity to influence religious and social affairs and leaving very much in
abeyance the future of the NRP as a meaningful participant in Israeli
politics, society, and culture.
Facing the prospect of electoral failure if they ran independently,
the ultra-Orthodox Agudat Israel, representing the various Hasidic
movements inside and outside Israel, and Degel HaTorah, represent-
ing the non-Hasidic ultra-Orthodox community, agreed to again sub-
mit a joint slate for the 2006 election under the United Torah Judaism
banner, and won six seats (an increase of one from the five they held
together in the preceding Knesset).
The party’s collective leadership was motivated by the same basic
domestic considerations in coalition negotiations with the Olmert
administration. Discord emerged about foreign policy. While Aguda
was stridently supportive of the settlers and firmly opposed to Ehud
Olmert’s diplomatic initiative with the Palestinians, Degel HaTorah
indicated a general readiness to provide Olmert with a Knesset safety
net for aspects of the initiative in exchange for concessions to its reli-
gious and social policy agenda. Initially, this safety net was provided
from outside the coalition, a situation that appeared generally satisfac-
tory for both Olmert and the Degel HaTorah leadership. The dynamic
of this relationship shifted, seemingly in Degel HaTorah’s favor, after
the eleven-member Israel Beiteinu, another right-wing party, with-
drew its support for the Olmert government in mid-January 2008 in
a dispute over negotiations with the Palestinians.
However, Degel HaTorah (along with SHAS) claimed to “draw the
line” in supporting the Olmert government on the issue of negotia-
tions with the Palestinians over the future of the Temple Mount in
Jerusalem’s old city. In adopting this red line, they appeared to be
operating well within the national consensus as it prevailed among
Jewish Israelis in 2008. That consensus declared that Jerusalem should
never be redivided and that the Western Wall and other Jewish holy
places should remain under Israeli sovereignty. Support for those posi-
tions was virtually unanimous, as strong among secularists as among
the Orthodox. The notion of retaining Jerusalem had bridged the
religious divide among Jewish Israelis.
C o nclusi on
Sixty years of history have provided numerous examples of the tensions
between state and religion within the modern Jewish State of Israel.
While the Declaration of Independence provided specific concepts for
the relationship, the functioning of the political system and the activi-
ties of daily life led to numerous controversies, not all of which have
been resolved. The practical politics of the Jewish state have led to
the blurring of lines in the wall of separation between synagogue and
state. And the dynamics of the relationship continue to be modified
by actors on both sides of the wall. Despite six decades of practice and
of debate among and between an ever-changing Jewish (and non-
Jewish population), no clear parameters have been established for the
roles of the secular and religious elements and no written constitution
articulates the precise role of church and state in relations with each
other, nor for the precise powers and limitations of each concern-
ing the other. Although all religious groups are free to practice their
religious beliefs as they see fit and deem proper, and there is no estab-
lished religion, the guarantees are built of practice and the workings of
the political system, not because of a constitutionally or ideologically
constructed “wall of separation” envisaged by Thomas Jefferson.
Notes
1. Estimates vary, but anywhere from 650,000 to 800,000 Jews left Arab
and Muslim countries in the Persian Gulf or North Africa in the period
beginning around 1948 and continuing into the early 1960s. The vast
majority were resettled in Israel. See Itamar Levin, Locked Doors: The Sei-
zure of Jewish Property in Arab Countries (New York: Greenwood Press,
2001).
2. These historical developments were the Balfour Declaration, the Holo-
caust, growing anti-Semitism, and Jewish assimilation that threatened
many of the great centers and institutions for the study of the Torah.
3. Moetzet Gedolei Hatorah declines to permit Aguda MKs to hold ministe-
rial portfolios in Israeli coalition governments, for to do so would be to
imply full concurrence with the state’s secular orientation.
Index
Please note that page numbers appearing in italics indicate endnotes.
Abbas, Ferhat, 159 Beveridge, Albert, 80

Abbas, Mahmoud, 160, 167 bin Laden, Osama, 162
Accommodationism, 129, 135 Birnbaum, Pierre, 111
Act of Toleration (1689), 39 Boumediene, Hourari, 159
Adams, John, 22, 26, 76 Bourguiba, Habib, 158–59
admiration for ideals/experience, 86 Boyd, Julian, 40
admiration for influential Brennan, William, 57
individuals, 86 Brown, Nathan, 12
Ahmadinejad, Mahmoud, 164 Bryan, William Jennings, 80
Albania, 122, 124–25 Bulgarian Orthodox Church, 124
Anglican Church, 40, 54, 63, 93, Bush, George W., 3, 5
124, 142, 143, 148
See also Church of England Calvinism
antidiscrimination legislation, Amsterdam and, 139–40
109–10, 132 democracy and, 142, 143
antidisestablishmentarianism, 131 Jefferson, Thomas, and, 21–22,
Arafat, Yasir, 160, 166 26, 30
Ataturk, Kemal, 156–59, 165 Carter, Jimmy, 3
Audi, Robert, 127 Casanova, Jos&ewithline;, 110, 112
Australia, 6, 61, 64, 66–68, 147 Catholicism
Section 116 of Constitution, 64, Australia and, 67
66–68 Austria and, 63
Aziz, Abd al, 162 Belgium and, 124, 146
concordants and, 121
Badie, Bertrand, 111 confessionalization and, 113–17
BarbéMarbois, Marquis de, 73 democracy and, 142–43, 146–48,
Barrett, David, 123, 125, 128 150–51
Barro, Robert, 128 France and, 119, 138
Basic Law of 1949, 80, 86, 88, 122 Ireland and, 62
Belgium, 124, 146–47 Italy and, 62, 104
Bella, Ahmed Ben, 159 Locke, John, and, 38, 45
Bellah, Robert, 118–19, 131 Peace of Westphalia and, 133, 142
Besancon, Alain, 104 secularization and, 110–11
234 Index
Catholicism (continued) Danbury Baptist Association, 3,

U.K. and, 109–10, 132 35, 42
United States and, 96 Davie, Grace, 114
Vatican Council II, 9 Declaration of Independence
Charlemagne, 111, 118 (Czech), 83
Church of England, 38–39, 63, Declaration of Independence (U.S.)
101, 137 France and, 75
See also Anglican Church freedom of religion and, 118–19
Church of Scientology, 127 Jefferson, Thomas, and, 37, 61
civil society natural rights and, 20
constitutional transference Declaration of Rights, 37–40,
and, 87 74–76
Islam and, 151, 167 de facto philosophy, 123–26
Madison, James on, 45–46, 49 Defence of the Constitutions . . . of the
Martin, David on, 9 United States (Adams), 76
Rémond on, 127 de jure philosophy, 123–25
Civil War (Lebanese), 167 Démeunier, Jean Nicole, 73
Civil War (Spanish). See Spanish Democracy in America
Civil War (Tocqueville), 79
Civil War (U.S.), 17–18, 20, 30–31 diffusion, 19, 32
Clermont-Tonnerre, Count Stanislav disestablishment
de, 102 France and, 138, 146
colonialism, 86, 158, 159 Jefferson, Thomas, and, 5, 31,
Condorcet, Marquis de, 75 38–40, 42–43, 50, 54
confessionalization process, 113–14 Madison, James, and, 38–40
conformity to international Sweden and, 126
documents or norms, Turkey and, 11, 157
constitutions and, 87 Dream of the Rood, The, 139
consensus fidelium, 8–9, 141–42 Dreyfus Affair, 104
Cooper, Anthony Ashley. See dual guarantees of religious freedom
Shaftesbury, Earl of domestic perspective, 54–60
Cooper, Thomas, 28 international perspective, 60–70
Cooperationism, 129, 130 due process, 85
Custos, Dominique, 64–65 Durham, Cole, 129, 135–36
Czechoslovakia/Czech Republic
birth of, 82–83 Eastern Orthodox Church, 113–14,
collapse of communism and, 125 149
Declaration of Independence, 83 Edict of Nantes (1685), 44
democracy and, 147–48 Egypt
Masaryk, Thomas, and, current state-religion relationship,
82–83, 87 167–68
Peace of Westphalia and, 133 Islam and, 12, 165–66
religious freedom and, 147–48 nationalism and, 158–61
secularization and, 125–26 secularization and, 158–61
Wilson, Woodrow, and, 82–83 Ellul, Jacques, 104
Index 235
Ely, Ezra Stiles, 21 Supreme Court rulings on, 57–60

Embarrassment of Riches, The Fox, Jonathan, 128–30, 135
(Schama), 139–40 France, 6, 44, 61, 63–66, 73–80
England. See Great Britain in Age of Revolution, 75–77
English Bill of Rights (1689), revolutions of 1848, 77–80
77, 97 Franco, Francisco, 138
Enlightenment, 18–20, 24, 28–29, Franklin, Benjamin, 73, 74, 86
31–32, 39, 73–75, 77, 146–48, freedom of conscience, 3, 5, 40–43,
151 45–50, 63, 94, 97, 100, 102,
Erbakan, Necmettin, 157 106, 126, 138
esprit, 147 free exercise, 6, 28, 37–51, 54–58,
Esprit des Lois, L’ (Montesquieu), 77 61–62, 64–66, 74, 118, 155
Establishment Clause (First Free Exercise Clause, 41, 55–58,
Amendment, U.S. 64–65
Constitution) Front de Libération Nationale
Section 116 of Australian (FLN), 158–60
Constitution and, 66–67
secularization and, 118, 131 Germany
Supreme Court rulings on, 41, Basic Law of 1949, 86, 88, 122
55–59, 136 cooperationism and, 129
taxation and, 53 democracy and, 148–49, 150
European Convention on Human Enlightenment, 146
Rights and Fundamental nationalism and, 77–80
Freedoms (1950), 62, 63, 87, Paulskirche Constitution, 79–80
121 secularization and, 93, 125
evangelical Christianity, 25–27, World War II and, 84, 120, 138
29–30 Goldberg, David, 12–13
Great Britain
Fallaci, Oriana, 104 Anglican Church and, 63, 93,
Fanon, Frantz, 159 101, 137
Fatah, 166–67 antidiscrimination legislation,
Fatton, Robert, Jr., 1–13 109, 132
Federalist Papers, The, 79, 100 Christianity and, 25–26
Ferrari, Silvio, 126–29 democracy and, 142
First Amendment (U.S. English Bill of Rights (1689), 77
Constitution) Israel and, 148
Declaration of Rights and, 43 Locke, John, and, 37–39, 44
Establishment Clause, 41, 53, religious freedom and, 122
55–56, 118, 121, 131, 136, Revolutionary War and, 48
143 secularization and, 4, 101, 142
Free Exercise Clause, 55–56, See also Anglican Church; Church
64–68, 70 of England
Section 116 of Australian Greece, 93, 114, 126, 150, 156
Constitution and, 66–68 Greek Orthodox Church, 124
236 Index
Habash, George, 160 Israel, 12–13, 158, 160, 166–67

Habeas Corpus Act (1679), 97 Israel, Jonathan, 44
Hale, Salma, 26 Italy, 62, 93, 104, 142, 146–47
Hamas, 160, 166–67
Haniyah, Ismail, 167 Japan, 6, 81, 84–85, 86
Haraldsson, Olaf, 139 Jefferson, Thomas
Harlan, John Marshall, 57 anticlericalism, 29–32
head scarves, 64–65, 70, 104, Christianity and, 17–32
157–58 domestic perspective, 54–60
See also religious dress dual guarantees of religious
Hegel, G.W.H., 103 freedom
Hemings, Sally, 42 France and, 73–74, 86
Herder, Johann Gottfried von, 77 international norms and, 87
Hezbollah, 167 international perspective, 60–70
High Federalists, 24, 28, 30 legacy, 53–70, 89
Hofstadter, Richard, 45 Locke, John, and, 37–45, 47,
Holmes, John, 18 50–51
Holy Roman Empire, 111 republicanism and, 20–24
Howard, A. E. Dick, 6, 73–89 unitarianism and, 24–29
Howard, John, 68 Virginia Statute for Religious
Hungary, 148 Freedom, 100
vision of Americans as “chosen,”
Iceland, 114 18–20
Ignatieff, Michael, 106 wall of separation, 1–3, 5–6,
Inglehart, Ronald, 3, 7 9, 11, 13, 122, 131–32,
Iran, 10–11, 156, 157, 161, 163–68 137–38, 146, 150, 155, 168
Iraq, 5, 137, 161–62, 165, 167 Jellinek, Georg, 97, 99–100
Ireland, 3, 62, 124, 135 Johnson, Paul, 111
Islam Jordan, 162
Algeria and, 159–60 Judaism
anti-Islamic movement, 8, 104 Christianity and, 104, 139,
authoritarianism and, 11–12 143–45
Catholicism compared to, 9 democracy and, 4
Egypt and, 167–68 European culture and, 104, 148
Europe and, 124–25 France and, 120
head scarves and, 138 freedom of conscience and, 45
Iran and, 163–65 Israel and, 12–13
Islamist movement, 165–67 Jefferson, Thomas, and, 21
Jordan and, 162 “Jewish Question” and, 102
liberalism and, 151 Middle East and, 158–59
Morocco and, 162 secularization and, 94–95
Saudi Arabia and, 161–62 U.S. Supreme Court and, 65
secular culture and, 95
secularization and, 156–61 kairos, 145
state and, 4, 8–12, 156–68 Kennedy, John F., 3
Turkey and, 156–59 Kercheval, Samuel, 21
Index 237
Khamenei, Ayatollah Ali, 163–64 Mexico, 146

Khatami, Mohammed, 164–65 military defeat/occupation,
Khomeini, Ayatollah Ruhollah, constitutions and, 86–87
163–64, 165 Mirabeau, Honoré Gabriel, 76
Mittermaier, Carl, 79
Lafayette, Marquis de, 86 Mohl, Robert von, 78
Lebanon, 165, 167 monotheism, 140
Le Pen, Jean-Marie, 104 Montesquieu, Baron de, 77
L’Esprit des Lois, 77 Moonies, 127
liberalism, 7, 24, 102–7, 120, moral community, 20–24
146–47, 151, 162 Morocco, 162
Lincoln, Abraham, 18, 20, 24, 84 Mounier, Jean Joseph, 76–77
Lipset, S. M., 96 Mubarak, Hosni, 166, 167
Locke, John, 37–51, 75, 77, 99 Muslim Brethren (MB), 165–66
Luther, Martin, 26, 142, 144
Lutheranism, 62, 124, 148–49 Nasrallah, Hassan, 167
Nasser, Gamal Abdel, 158, 160, 165
MacArthur, Douglas, 84–85 nationalism
Madeley, John, 8, 109–32 Christianity and, 139, 148–50
Madison, James democracy and, 9
freedom of religion and, 54–56, France and, 77
58–60 human solidarity and, 141–43
Free Exercise law and, 64–65 Islam and, 163–68
Jefferson, Thomas, and, 38–39 Middle East and, 156, 158–61
Locke, John, and, 45–47, 49–51 secularization and, 146
Religion Clause (Declaration of United States and, 18
Rights), 38–39 natural rights, 20, 42, 49, 99
Reynolds v. U.S. (1879) and, 41 Nazism, 104, 138
secularization and, 70, 101 Neuhaus, Richard, 127
Virginia Statute for Religious New Religious Movements (NRMs),
Freedom, 41–42 114, 127
Magna Carta, 77, 88 Norway, 62, 93, 147
Marbury v. Madison, 74 Notes on the State of Virginia
Maritain, Jacques, 146 (Jefferson), 50, 73
Marshall, John, 74
Martin, David, 8–9, 110, 137–51 O’Neil, Robert, 2, 6, 53–70
Masaryk, Thomas, 83, 87 Onuf, Peter, 5, 17–32
Mason, George, 75 Orthodox churches
Matsumoto, Joji, 84 Bulgarian Orthodox Church, 124
Mayer, Ann Elizabeth, 11 Eastern Orthodox Church,
McCleary, Rachel, 128 113–14, 149
McKinley, William, 80 Greek Orthodox Church, 124
Memorial and Remonstrance against Romanian Orthodox Church,
Religious Assessments, 45, 46, 126
49, 54 Russian Orthodox Church,
messianism, 149, 150 124, 143
238 Index
Orthodox churches (continued) See also head scarves

Serbian Orthodox Church, 125 Religious Freedom Restoration Act
O’Shaughnessy, Andrew Jackson, (RFRA), 58
vii–x Religious Land-Use and
Institutionalized Persons Act
Paine, Thomas, 137 (RLUIPA), 58–59
Palestine, 163, 165 Rémond, Rene, 119, 127
Palestine Liberation Organization republicanism, 5, 19, 20–24, 25, 30
(PLO), 158, 160 Reynolds v. U.S. (1879), 41
Paulskirche Constitution, 78–80, 87 Robinson, Moses, 22
Peace of Westphalia, 44, 96, 113, Roman Catholic Church. See
133 Catholicism
Petition of Right, 97 Romania, 87, 126, 149
Philippines, 80–81, 86, 138 Romanian Orthodox Church, 126
Pickering, Timothy, 28 Rousseau, Jean Jacques, 76–77
Pipes, Richard, 150 Rush, Richard, 78
Poland, 77, 138, 139, 141, 142, Russia, 84, 121, 124–26, 143, 146,
149 148–50
political/economic calculations, See also Soviet Union
constitutions and, 87 Russian Orthodox Church,
Pope Benedict XVI, 63, 150 124, 143
Pope Gregory VII, 112
Pope Innocent III, 112 Sadat, Anwar, 158–59, 166
Potsdam Declaration, 84 Salazar, António de Oliveira, 138
Priestley, Joseph, 26 Saudi Arabia, 161–62
Protestantism, 7, 9, 23, 30–31, 44– Savigny, Friedrich Karl von, 77
46, 51, 95–98, 102, 113–17, Schama, Simon, 139–40
121, 124, 139, 142, 146–48, Second Great Awakening, 23,
150–51 25–26, 29–31
Prussia, 79, 84 secularization
Puerto Rico, 80 Catholicism and, 110–11
Putin, Vladimir, 150 Czechoslovakia/Czech Republic
and, 125–26
Quandt, William, 9–10, 155–68 difference and, 100–102
Egypt and, 158–61
Rafsanjani, Hashemi, 164 Establishment Clause (First
Rakove, Jack, 5–6, 37–51 Amendment, U.S.
Ramazani, R. K., 1–13 Constitution) and, 118, 131
Rehnquist, William, 56, 58, 136 freedom of conscience and, 97
Reich, Bernard, 12–13 Jellinek, Georg on, 97–100
Religion Clause (Declaration of Judaism and, 94–95
Rights), 38, 40–41, 43 liberalism and, 102–7
religious dress, 64–65, 70, 104, Madison, James, and, 70, 101
138, 157–58 natural law and, 99
Index 239
Protestant Reformation and, conformity to international

96–97 documents/norms, 87
religion and, 94–95 military defeat/occupation,
Turkey and, 6, 11, 61–62, 121, 86–87
156–59 political/economic
See also wall of separation calculations, 87
Seligman, Adam, 7–8, 93–107 technical advice, 87
Separation Act, 120 Treaty of Augsburg (1555), 113
Serbia, 125, 139, 149 Treaty of Westphalia (1648), 142
Serbian Orthodox Church, 125 Trinitarianism, 26, 28
Shaftesbury, Earl of, 38 Tunisia, 158–59, 161
Shah, Reza, 157, 163–64 Turkey
sharia, 12, 44, 156–57 Ataturk, Kemal, and, 156–59
Sieyès, Abbé, 76–77 France and, 146
slavery, 19–20, 31, 35, 140 Greece and, 150
Smith, James, 29 influence on Middle East,
Soviet Union, 86, 122, 125, 129, 157–59, 165, 167
Islam and, 157–58, 161
158
religious freedom and, 62
See also Russia
secularization and, 6, 11, 61–62,
Spain, 80, 81, 93, 114, 138, 142,
121, 156–59
146
Tydings-McDuffle Act (1934), 81
Spanish Civil War, 146
Statute for Religious Freedom, 40,
Unitarianism, 24–29, 30
47, 50, 51, 54, 61, 64, 73, 100
Stepan, A., 120 Vatican Council I, 104
Stevens, John Paul, 58 velayat i-faqih, 164, 165
Story, Joseph, 79 Viginia Statute for Religious
Sweden, 62, 93, 96, 126, 147 Freedom. See Statute for
Switzerland, 156, 163 Religious Freedom
violence, 4, 9, 19, 96, 137–51, 165
Taft, William Howard, 80–81 Vladimir of Kiev, 139
taxation, 41, 48, 53, 125, 128
Tayyip, Recep, 158 Wahhabism, 151, 161–62
technical advice, constitutional ideas wall of separation, 1–3, 5–6, 9, 11,
and, 87 13, 122, 131–32, 137–38, 146,
Tocqueville, Alexis de, 78–79, 119 150, 155, 168
transference, constitutional ideas, Ward, Keith, 118, 133
85–87 Washington, George, 99–100
admiration for ideals/experience, Waterhouse, Benjamin, 26–28
86 Weber, Max, 2, 109, 112
admiration for influential Welzel, Christian, 3
individuals, 86 Whitney, Courtney, 84
colonialism, 86 Williams, Elisha, 99
240 Index
Williams, Roger, 97 World War II, 87, 104, 120, 147,

Wilson, Bryan, 132 149, 157
Wilson, Woodrow, 82–83, 86
World War I, 82, 86, 134, 146, 149 Yugoslavia, 125

(R.K. Ramazani, Robert Fatton) Religion, State, An

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Reli gi on, State, and Society

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Edited by Robert Fatton, Jr. and R. K. Ramazani

All rights reserved.

First published in 2009 by PALGRAVE MACMILLAN® in the

Palgrave Macmillan is the global academic imprint of the above

Palgrave® and Macmillan® are registered trademarks in the United

Library of Congress Cataloging-in-Publication Data

Religion, state, and society : Jefferson’s wall of separation in

A catalogue record of the book is available from the British Library.

Design by Scribe Inc.

First edition: January 2009

Printed in the United States of America.

I The American Experience: The Jeffersonian Wall of

1 Thomas Jefferson’s Christian Nation 17

2 Beyond Locke, beyond Belief: The Nexus of Free 37

3 “Separation” Abroad: How Long the 53

4 The Road from Monticello: The Influence of the 73

II The Wall of Separation and Western Perspectives

5 Secularism, Liberalism, and the Problem of Tolerance 93

6 America’s Secular State and the Unsecular State 109

7 Christianity, Violence, and Democracy: Sociohistorical 137

III Middle-Eastern Perspectives

8 Religion and Politics in the Middle East and 155

9 Revisiting Jefferson’s Wall from a Contemporary 171

10 Constitutionalizing Islam in the Arab World 195

11 Religion and State in the State of Israel 215

Unlike the French and Russian Revolutions, the American Revolution

Church. Jefferson’s later definition of the relationship of church and

not particularly contentious in the nineteenth century when the rela-

my assistant at the Smith International Center, helped in numerous

Andrew Jackson O’Shaughnessy

Robert Fatton, Jr. and R. K. Ramazani

T he chapters in this book are the product of a conference entitled

proper balance between religion and state. Even communist China

checks and balances, a recognition of national and local interests, con-

unto themselves. Instead of a tolerant cosmopolitanism, there is in

unity is in principle beyond recovery.” The vacuum left by the shatter-

Iran, however, seems to be the exception to the primacy of politics

Ann Elizabeth Mayer reminds us that “patterns of repression” are

Nathan Brown, on the other hand, suggests that this awareness

The Amer ican Ex per ience:

Thomas Jef f erson’s

I n their 1861 Constitution, the Confederate States launched their

of slavery to the West, Jefferson foresaw the emergence of two hostile

destiny—and the destiny of their slaves as well. Not surprisingly, this

generation,” thus stood in counterpoint to his conception of genera-

sect”—the living generation of man—“doers of good and eschewers

soften their asperities, liberalize and neutralize their prejudices, and

Th e U nita r i an Rev i val

by promoting more “democratic,” congregational forms of church

Unitarianism was both the starting point—the religion of humanity

Jefferson’s “Unitarians” would not be the advocates of particu-

the product of many hard years of reading and reflection. Enlighten-

Jesus also.”54 Unitarian missionaries constituted a vanguard of popular

C o u nter revo luti onary Tendenci es

In the founding era, Jefferson and his fellow revolutionaries cam-

day, the republican revolutionaries’ “enlightenment” and the revival-

Press, 2006), chap. 10. I am indebted to Charles F. Irons, The Origins

41. TJ to Benjamin Waterhouse, June 26, 1822, in Peterson, Jefferson Writ-

William and Mary Quarterly, 3d ser., 56 (1999): 775–90. On church

Beyond Locke, beyond Belief

One of the great pleasures of writing history is to capture a thinker