I am presently working on my third book, a biography of St. George Tucker, the distinguished judge, legal scholar, and law professor of early nineteenth-century Virginia. An essay based on early research in the book project appeared in the February, 2006 volume of the William and Mary Law Review. It is entitled, “Transforming Society Through Law: St. George Tucker, Women’s Property Rights, and an Active Republican Judiciary”. The book project will use Tucker, an ardent Jeffersonian Republican, as the basis for investigating the role of Republican judges in the early republic in judicial lawmaking, a process condemned by their party’s leader and most of it adherents. I also plan to use Tucker’s jurisprudence to investigate the extent to which contract law principles, which are accepted in the current historiography as transforming American society into an individualistic and commercial center in the north, were adopted in the slaveholding south.
The Tucker project is consistent with my earlier writings in that it explores the relationship between ideas or beliefs and individual and group actions. It also presents another opportunity to address my interest in the tensions between individual rights and the social good in American society and the role of law in resolving this tension. While it is a project in legal history, it can more broadly be classified as intellectual history. I consider myself an intellectual historian and see my earlier work in law, religion, and civil rights as explorations of various subsets of ideas and beliefs within the larger context of America’s intellectual heritage.
My latest book, One Nation Under Law: America’s Early National Struggles to Separate Church and State was published in October of 2004. It sold out its first printing within 6 months, prompting a paperback edition to be issued in Spring of 2005. The book was selected as a featured book by the History Book Club for January 2005. Three themes are developed in this work. First, the process of disestablishment in the early republic involved Americans in their greatest ideological debate prior to the Civil War. Conflicting groups of people disagreed over the values and goals of American society and the design of the institutions in which they would be reflected. Second, law provided the means by which disestablishment would occur by imposing principles of liberal republicanism, expressed in common law and judicial interpretations of constitutions. New contract-law doctrine forced churches to accept a corporate form, repositioning them as private entities rather than public institutions. But, while law determined the process of disestablishment through the separation of private and public institutions, it could not resolve the substantive issues at the heart of America’s ideological debate. This conflict then persisted with private associations and corporations able to offer visions of American society that were alternative to those expressed through the public sector. Third, while law could command the separation of church and state though the delineation of public and private spheres, American society struggled for decades to remove religion from public policy and the churches form roles of public responsibility.
When Americans living in the twenty-first century think about the legal basis for separation of church and state, they may mistakenly turn to the First Amendment, which as part of the Bill of Rights, protects American citizens from governmental interference with their private rights. The First Amendment secures religious freedom, protecting the right to religious belief as a matter of private conscience. It does not separate church and state. This distinction is frequently used by theologians and scholars who argue that the Constitution did not separate church and state. Some of these people then further assert that the founders never even desired a separation of church and state, and that governments in the United States may support religion in nondiscriminatory or at least nonexclusionary ways.
Yet the legal basis for separating church and state does exist in the Constitution, in article 1, section 10, in the ‘contract clause.” In this provision, the supreme law of the land protects all matters of private interest expressed in contract from interference by government. During the early republic, consistent with the ideology that spawned the First Amendment, Americans reconceived of religion as a matter of private conscience and of churches as private voluntary associations, legally recognized as private, not public, corporations. This transformation of the churches from public to private entities arose in the midst of contentious debate over American values, rooted in different conceptions of man and different understandings of religious truths. Constitutional language and the ideology it expressed served as the basis for separating church and state in the early republic as Americans formed civil institutions consistent with Revolutionary-era ideals.
I am very proud of having been selected to contribute a chapter to The Cambridge History of Law in America, edited by Chris Tomlins and Mike Grossberg, and published in 2008. The chapter, co-written with Betty Mensch, Professor of Law at SUNY-Buffalo School of Law, presents a broad outline of the role of religion in shaping law in colonial America.
My first book, Charity, Philanthropy and Civility in American History, co-edited with Larry Friedman, came out in January 2003. We conceived of a new synthetic work in the field of philanthropy that could replace Robert Bremner’s American Philanthropy, originally published in 1960. A large amount of excellent multi-disciplinary scholarship addressing philanthropy had been published in journals during the 1970’s, ‘80’s, and ‘90’s. Our task was to identify major themes developed in this literature and coordinate the efforts of sixteen scholars who contributed to the volume. We sought, and hopefully achieved, a work integrated by our eight themes that nonetheless offers readers the chance to perceive the disagreements and tensions among scholars in the filed. This book is also in its second printing and in paperback. It received two research awards for the year of its publication.
In addition to these book projects, I have also published several journal articles addressing a broad subject and chronological range. Pieces on immigrant railroad laborers in the twentieth-century, the development of law on philanthropy in the nineteenth century, and Jefferson and slavery in the founding era all share a thematic attention to how ideas or beliefs influence action or policy. Law is one means of transforming ideas into action, or of reconciling popular beliefs and attitudes with policy. Yet, it is best understood in the context of popular expressions of opinion, intellectual movements, and social trends. My work on Tucker will continue in this vein.