God and State Preambles

GW Law Faculty Publications & Other Works Faculty Scholarship

2017

Peter J. Smith George Washington University Law School, [email protected]

Robert W. Tuttle George Washington University Law School

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Recommended Citation Smith, Peter J. and Tuttle, Robert W., God and State Preambles (March 1, 2017). 100 Marquette L. Rev. 757 (2017); GWU Law School Public Law Research Paper No. 2018-27; GWU Legal Studies Research Paper No. 2018-27. Available at SSRN: https://ssrn.com/abstract=3139611

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GOD AND STATE PREAMBLES

PETER J. SMITH*&ROBERT W. TUTTLE**

Those who question the permissibility of official acknowledgments of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God’s blessing on the state’s endeavors. Yet there has been no detailed assessment of the preambles’ history or significance. This paper seeks to remedy that gap. The preambles complicate the claim that official acknowledgments of God are incompatible with our legal culture. But the history of their adoption also does not offer clear support for those who support a robust inter-relationship between religion and civil government. References to God in state preambles were outliers for the first half-century after the ratification of the federal Constitution and did not become common until the 1840s, when the effects of the Second Great Awakening—and its commitment to the idea that religion was the province of the community and the state—influenced the process of state constitution-making. Most of the preambles are thus the product of a movement that sought to create, rather than to continue or restore, a tradition of collective acknowledgment of God in state constitutions. The complex history of the preambles reveals the difficulty of relying on them to assert any strong normative claims about the proper relationship between religion and civil government. On the one hand, the history of the preambles does not provide obvious support to those who treat the original meaning as dispositive today, because 39285-mqt_100-3 Sheet No. 48 Side A 06/19/2017 09:53:44 there is no unambiguous and unbroken tradition, dating to the framing, of a dominant practice of references to God in state preambles. On the other hand, those who accept the possibility of dynamic constitutional meaning cannot readily ignore the near-uniform practice of referring to God in the preambles. At the same time, the character and function of a constitutional preamble—to state the polity’s aspirations and inspirations without creating any operative law—might be sufficiently distinctive to limit the preambles’ relevance for other forms of official endorsement of religious messages.

* Professor of Law, George Washington University Law School. ** Berz Research Professor of Law and Religion, George Washington University Law School.

Electronic copy available at: https://ssrn.com/abstract=3139611

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I. INTRODUCTION ...... 758 II. THE PREAMBLES:AN OVERVIEW ...... 761 III. THE PREAMBLES:HISTORICAL DEVELOPMENT ...... 767 A. 1776–1789 ...... 769 B. 1790–1840 ...... 781 C. 1840–1860 ...... 790 D. 1861–1877 ...... 807 E. 1878–Present ...... 821 IV. THE PREAMBLES RECONSIDERED ...... 823 V. CONCLUSION ...... 832

I. INTRODUCTION Over the past decade, the Supreme Court’s focus in Establishment Clause cases has shifted from disputes over government funding of religious institutions to controversies over official acknowledgments of God or particular religious messages. Those who question the permissibility of such acknowledgments might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in Northern, Southern, Midwestern, and Western states. Virtually all of those preambles give thanks to God. California’s preamble is typical, providing: “We, the People of the State of Califor- nia, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.”1 Many of 39285-mqt_100-3 Sheet No. 48 Side B 06/19/2017 09:53:44 them also seek God’s blessing on the state’s endeavors; New Jersey’s preamble, for example, states: We, the people of the State of New Jersey, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this Constitution.2 Only five states have constitutions that do not refer to God in the preamble, and three of those have constitutions that simply do not have preambles.3 The preambles certainly complicate the claim that

1. CAL.CONST. pmbl. 2. N.J. CONST. pmbl. 3. The constitutions of New Hampshire, Vermont, and Virginia begin with a Declara-

Electronic copy available at: https://ssrn.com/abstract=3139611

C M Y K 39285-mqt_100-3 Sheet No. 49 Side A 06/19/2017 09:53:44 . EX How the , 87 T . Only Or- . (“We pmbl. ONST ONST .C A .C R .; V O 759 759 . 125, 145 (2012) (relying on See ONST OL .C T .; V .L.&P But there has been no de- But there has 4 Town of Greece v. Galloway, 134 S. Ct. EV We a Religious People, Whose Are Institu- ONST incompatiblewith cul- our legal .R EX see also N.H. C 13, 18–20 (2000) (reviewing the preambles of sev- 13, 18–20 (2000) (reviewing the preambles , 17 T State Constitutions, Religious Protection, and Federal- State Constitutions, Religious Protection, and See 226, 230–31, 235 (2013) (arguing that invocations of 226, 230–31, 235 (2013) (arguing that invocations Y ) 6/12/17) 1:49 PM ’ EXUS OL ELETE .P 5 N D UB OT OT N O GOD AND STATE PREAMBLES AND STATE GOD (D J. L. & P DOCX . Individual Rights Under State Constitutions When the Fourteenth Amendment INAL , Christopher Hammons, -F HOMAS . pmbl. .T T UTTLE We,people of the state of Ten- the delegates and representatives of the of said and in convention assembled, in pursuance nessee, duly elected, the following Constitu- act of Assembly have ordained and established which we recommend to the tion and form of government for this state, people of Tennessee for their ratification. S ONST &T . 7, 12, 37 (2008)); Holy Trinity Church v. United States, 143 U.S. 457, 465, 468 (1892) . 7, 12, 37 (2008)); Holy Trinity Church v. United States, 143 U.S. 457, 465, 468 (1892) . See, e.g. .C 4 Despite tension with prevalence and their common understandings EV M K , 7 U. MITH MITH ENN C Y state preambles to support claim that governmental endorsement of religion is consistent state preambles to support claim that governmental Eastman, with the Establishment Clause); John C. tions Presuppose a Supreme Being, God are “part of a long constitutional tradition in the United States” because “an astound- God are “part of a long constitutional tradition preamble,”ing ninety percent mention God in their and “indicate that religion, far from vanquished in American constitutionalism, merely is another aspect of our federal government jurisdiction”); E. Duncan Getchell, Jr. & Michael intended for state H. Brady, WhenConstitutions of the Thirty-Seven States in Effect Was the Fourteenth Amendment Adopted Test in Establishment Clause Jurisprudence is Demonstrate that the Governmental Endorsement Contrary to American History and Tradition L. R tion of Rights with no formal preamble. tion of Rights with no 2017] acknowledgmentsofficial of God are 2S ture. the preambleschurch and state, separation of about the have received academicvery little occasional academic attention. The references— and cites in Supreme opinions—have, Court relied on not surprisingly, the preambles for the view as support Constitution that the federal tolerates official acknowledgment of God. ism and liberty perpetuated, do ordain this Constitution.”);and liberty perpetuated, T the people of the State of Oregon to the end that Justice be established, order maintained, of Oregon to the end that Justice be established, the people of the State egon and Tennessee have preamblesegon and Tennessee that do not refer to God. (arguing that “no purpose of action against religion state can be imputed to any legislation, “[e]very which is evident in the fact that or national, because this is a religious people,” or constitution of every one of the forty-four States contains language which either directly by clear implication recognizes a profound reverence for religion and an assumption that its of the community,” such as the influence in all human affairs is essential to the well-being eral states from the time of the federal Constitution, the ratification of the of the ratification Fourteenth Amendment,that such historical evidence of and later, and arguing “a long- established and universal tradition” demonstrates that official invocation of God is constitu- and similar constitutional acknowledgements tionally permissible; concluding that “[t]hese of God remainto this very day, in nearly every one of the fifty states. It is a strange in place so public acknowledgement of God to which interpretation indeed that prohibits the very many of the state constitutions give voice.”); in part and concurring in the judgment) (“[O]f the 1811, 1838 (2014) (Thomas, J., concurring Amendment was ratified, 27 State Constitutions 37 States in existence when the Fourteenth (quoting Steven G. Calabresi & preambles.’”) their ‘contained an explicit reference to God in Sarah E. Agudo, Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 39285-mqt_100-3 Sheet No. 49 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 49 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 49 Side B 06/19/2017 09:53:44 M K C Y But there is no “un- 7 [100:757 [100:757 of the federal Constitu- storians contend that the and its influences on public —with commitment its to the 5 of God in state constitutions. oach have measured constitutionality ) 6/12/17) 1:49 PM ELETE D OT OT N MARQUETTE LAW REVIEW MARQUETTE Most of the preambles of a are thus the product 6 O (D , 134 S. Ct. at 1819. DOCX . at notes 121–38 and accompanying text. INAL notes 139–43. -F infra 8 UTTLE 5. that began in The Second Great Awakening was a Protestant revival movement &T . See infra . Town of Greece 6 7 8. MarshChambers, 463 U.S. 783, 792 (1983). v. If proponents of a legally enforced separation between enforced separation of a legally If proponents and religion To be sure, many and popular hi scholars The complex history of the preambles the difficulty of rely- reveals MITH MITH the late eighteenth century and focused on personal salvation and moral growth. It taught the late eighteenth century and focused on personal salvation and moral growth. transfor- that the whole community, rather than just the individual, is the object of divine mation. See ambiguousunbroken history of more and than 200 years,” dating to the framing, of a dominant to God in state pre- practice of references ambles. recognition in the preamble of the constitution of Illinois). tion. In fact, they did not becometion. In fact, they common the 1840s, when until the Great Awakeningeffects of the Second 760 assessmenttailed preambles’ of the paper This or significance. history remedyseeks to that gap. civil government must God in of references to the ubiquity confront state preambles, betweenof robust inter-relationship supporters religion and civil government must concede that the preambles of- do not support for their view.fer clear historical of the Close consideration history of the preambles that references to God reveals were outliers after the ratification for the first half-century 2S idea that God specially blessed America,idea that God specially com- and that the political munity owesin response—influenced gratitude of state the process constitution-making. movement create, rather that sought to restore, a than to continue or tradition of collective acknowledgment ing on them to assert any strong normative claims about the proper relationship between and civil religion government. the one hand, On the history of the preambles does not provide obvious support to those who seek greater inter-relationship between and civil gov- religion ernment who and treat the original meaningdispositive today. as Those sympathetic to this appr under the Establishment Clause by seeking to determine whether a particular practice “was accepted by the Framers and has withstood the critical scrutiny of time and political change.” life. But in makinghave often relied on the ar- these assertions, they framerssought to create a government that embraced religion—and more specifically Protestant Christianity— 39285-mqt_100-3 Sheet No. 49 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 49 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 50 Side A 06/19/2017 09:53:44 761 761 but others refer to the 10 the cultural and religious VERVIEW O N . In Part IV, we consider what ilarly, modern efforts to invoke :A as devout Christiansas devout who sought to ) 6/12/17) 1:49 PM REAMBLES P ELETE D or “Almighty God,” . pmbl. (“We, to the people of the state of Idaho, grateful 9 HE OT OT . pmbl. (“We, the people of the state of Minnesota, grateful to N ONST O GOD AND STATE PREAMBLES AND STATE GOD C (D ONST II. T .C DOCX . DAHO INN , I INAL , M -F UTTLE . See, e.g. &T . See, e.g. 10 9 On hand, those who the other seek between greater separation reli- In Part II, wean overview provide of the preambles to the current Forty-five of the fifty current state constitutions refer to God.Forty-five of the fifty current state Those M K MITH MITH C Y God for our civil and religious liberty . . . .”). God for our civil and religious liberty . . Almighty God for our freedom . . . .”). 2017] guments who of those wrote Awakening. Great Second the during in contemporary a double irony There is on such claims. reliance One Great Awakening of the Second of the projects was to re-imagine the framers the federal Constitution of movements adoption that led to their 2S holy community.create a This project, however, was based ahistorical, understanding of theon a revisionist framing of era, as our discussion the preambles will demonstrate. Sim the state preambles of official evidence of a longstanding tradition as are likely themselvesinvocations of God for historical support to rely on the revisionism Great Awakening. of the Second gion and civil government and who accept the possibility of dynamic constitutional meaning cannot readily ignore the near-uniform practice if constitutional meaning Indeed, in the preambles.of referring to God values, then there is on changing practices and social can evolve based Clause—ora plausible case that the Establishment at least the Clause by the Fourteenth Amendment—as incorporated against the states tolerates some forms of official acknowledgment of God. To be sure, constitutional preamble—tothe character and function of a the state withoutpolity’s aspirations and inspirations creating any operative law—might distinctive be sufficiently to limit the preambles’ relevance for other forms of official endorsement of religious messages. a But at minimum, it would be implausible in to argue that a reference to God a state preamble that closely resembles those in other states violates the EstablishmentClause today. westate constitutions. In Part III, explain the historical development of the preambles, with particular attention to that history suggests about contemporary understandings of the relationship between state—and church and what it does not suggest. preambles vary in the terminology use to refer to God. that they The majority “God” refer to 39285-mqt_100-3 Sheet No. 50 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 50 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 50 Side B 06/19/2017 09:53:44 M K C Y 17 —to the strikingly strikingly the —to 16 . pmbl. . of 1821, pmbl. [100:757 [100:757 ONST hire, Oregon, Tennessee, Oregon, hire, ONST C invoking God. invoking They range N.Y. See the “Sovereign Ruler of the Uni- of the Ruler “Sovereign the . N.Y. pmbl.; C 11 They also vary in the claims, vary in the They also both the “great Legislator of the Uni- Legislator the “great e preambles to their current constitu- 15 13 ONST ) 6/12/17) 1:49 PM .C Indeed, New so since York’s has done 18 ess of our rolling plains” ess of our rolling ASS . pmbl. (“We, the people of Hawaii, grateful for Divine ELETE D OT OT ONST N MARQUETTE LAW REVIEW MARQUETTE O .C (D . pmbl.; M . (“We, pmbl. the people of the State of Washington, grateful to the . pmbl. AW . pmbl. . (“We, pmbl. of Colorado, with profound reverence for the people . pmbl. (“We, therefore, the people of Massachusetts, acknowledging, . pmbl. (“We the People of the State of Iowa, grateful to the Supreme . of 1777, used different language pmbl. The state’s 1821 constitution DOCX . ONST ONST ONST ONST ONST ONST . C ONST INAL ONST .C .C .C C .C -F .C C AL A . pmbl.; H V C ASH the “Supreme Being,” or simply the “Divine.” ONT ASS OLO UTTLE shiping and serving their Creator according to the dictates of their con- shiping and serving their Creator according and liberty, of acquiring and sciences, of enjoying and defending life in general of obtaining objects protecting reputation and property, and suitable to their condition, without injury by one to another . . . . OWA 12 14 Massachusetts’sCalifornia’s since its admission since 1780, and ONST .See &T 19 13. I 15. have by nature the rights of wor- Through Divine goodness, all people 12. W 19. New York’s 1777 constitution, adopted upon the declaration of independence from 14. M 17. W. 16. M 11. C 18 Constitutional preambles with references to God are not simplya .C MITH MITH EL Great Britain, simply quoted at length from the Declaration of Independence, which re- entitle ferred to “separate and equal station to which the laws of nature and of nature’s God them.” N.Y. verse,” phenomenon citizenries or states conservative with of states politically with large numbers Christians. The preambles of evangelical to the New of California, current constitutions Massachusetts, York, and for example,to God. all refer 1777, to the Union in 1849. There similarly political or geo- is no predictable whosegraphical pattern for the five states current constitutions do not mentionNew Hamps God in a preamble; only Vermont, and Virginia either lack preamblesconstitu- in their current tions or do not refer to God in th Supreme Ruler of the Universe for our liberties . . . .”). with grateful hearts, the goodness of the great Legislator of the universe . . . .”). with grateful hearts, the goodness of the great D devotional—such as West Virginia’s explicit statement, adopted in 1960, “reaffirm[ing] our faith in and reliance upon God.” constant the Supreme Ruler of the Universe . . . .”). the Supreme Ruler of the Universe . . . .”). explicit and implicit,explicit that they make in from barely theological—such the as Montana’s of grati- expression tude “to Godgrandeur of our our state, the for the quiet beauty of mountains, [and] the vastn Being for the blessings hitherto enjoyed . . . .”). Being for the blessings hitherto enjoyed . . 762 “Supremeof the Universe,” Ruler 2S Guidance . . . .”). verse,” with an explicit expression of gratitude to God. 39285-mqt_100-3 Sheet No. 50 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 50 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 51 Side A 06/19/2017 09:53:44 . pmbl.; ONST .C T 22 . pmbl.; V 763 763 ONST .C ENN But what distinguishes them But what distinguishes e attributes of God in most Type Dakota’s preamble, adopted in Over time, however, the signifi- 23 . pmbl.; T However, Type 1 preambles make Type 1 preambles However, 21 ONST ) 6/12/17) 1:49 PM .C R ELETE D OT OT N O GOD AND STATE PREAMBLES AND STATE GOD (D . pmbl.; O . pmbl. DOCX . ONST INAL ONST -F C N.H. C . pmbl. UTTLE 20 . See &T ONST 20 21. Montana’s current preamble, which expresses gratitude to God for the natural 22. N.D. 23. “blessings.” Whereas Both Type 1 and Type 2 preambles often refer to God’s in Although preambles the vary in manyrefer- the language details, Type 1 preambles God or a supreme generally identify being as the Many Type 2 preambles share with Type 1 preambles an expres- M K .C MITH MITH A C Y ring to Godinto one of two tends to fall formulations. basic verbal We the tworefer to “Type 2” preambles. as “Type 1” and categories As we explain below, significant theological likely reflected the categories antebellumdistinctions in the period. than the other dimin- choice of one type rather cance of any state’s simplyished, as states borrowed from language other states’ existing constitutions. to God for that express gratitude or liberty and usually source of rights of liberty, and to blessings, if at all, as an attribute liberty. They refer and the federal the Declaration of Independence in that sense echo Constitution. The only reference to th 1 preambles as creator, either of humankind, is to God of liberty, of or engage in self-government, or humankind’sto enjoy liberty capacity some combinationthings. these no claim God’s about sovereignty over human affairs or about Ameri- can religious exceptionalism. North 1889 upon admission to the Union, is typical: “We, the people of North Dakota, grateful to Almightyreli- God for the blessings of civil and this constitution.” gious liberty, do ordain and establish 2017] tions. 2S from Type 1 preamblesassertion that the future wel- is the additional infare of the state depends (at least The part) upon God’s providence. hallmark of Type 2 preambles future divine inter- is the possibility of vention in human affairs. Preambles of this type vary in the language that they use to indicate this relationship between God and the state: V sion of gratitude to God for liberty. bounty of the state, qualifies as a Type 1 preamble under our typology because it envisions bounty of the state, qualifies as a Type 1 preamble under our typology because it af- God as creator with no other explicit claim of continuing divine involvement in human fairs. Type 1 preambles the “blessing” has already occurred (in God’s creation of humankind Type 1 preambles the “blessing” has already occurred (in God’s creation of humankind with the capacity to enjoy liberty), in Type 2 preambles there is an additional contemplation of future blessings on human affairs. 39285-mqt_100-3 Sheet No. 51 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 51 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 51 Side B 06/19/2017 09:53:44 M K C Y Iowa’spre- 28 some acknowledge 24 [100:757 [100:757 and others express “rever- and others 25 constitution-making, the choice is claim is implicit in Type 2 pre- rafting their own to constitutions, and in preambles assert that that 27 litical claims were originally implicit however, the choice was more likely to ) 6/12/17) 1:49 PM ELETE D . to the Supreme. grateful Being for . . pmbl. (“We the People OT OT .. invoking . . pmbl. (“We, the people of the State of Alabama . pmbl. (1875) (“[W]ith reverence for the Supreme profound . pmbl. N MARQUETTE LAW REVIEW MARQUETTE . pmbl. (“We, the people of the State of Rhode Island and Prov- O ONST (D ONST ONST ONST C 29 ONST . (“[W]e pmbl. the people of Georgia, relying upon the protection and .C .C .C . pmbl. C But all seek God’s blessing on the people’s endeavors on the people’s seek God’s blessing But all DOCX O . LA 26 LA OWA ONST , M ONST , A , I , R.I. , A INAL C .C -F A UTTLE OWA . See, e.g. . See, e.g. . See, e.g. . See, e.g. . See, e.g. &T 26 29. I 25 28 24 27 In the first hundred years of state In the first hundred years of state Some Type 2 preambles also imply a claim about American excep- MITH MITH amble, is a typical Type 2 preamble: adopted in 1846, “WePeople the of the State of Iowa, grateful to the Supreme for the blessings Being Him for a continua- and feeling our dependence on hitherto enjoyed, a free and independent and establish tion of those blessings, do ordain government . . . .” the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of the blessings hitherto enjoyed, and feeling those blessings, do ordain . . . .”). the favor and guidance of Almighty God, do ordain and establish the following Constitu- the favor and guidance of Almighty God, tion . . . .”); G God “so long permitted” has liberty. the people to enjoy idence Plantations, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and to transmit the same, unimpaired, to succeeding generations, do ordain and establish this Constitution of government.”). ence” for God. ence” for “dependence” on God or God’s blessing; on God or “dependence” 764 some of God; or “guidance” “favor” the seek 2S between often revealed something Type 1 and Type 2 language im- theologicalportant about understandings, both the re- and political, of lationship between and secular authority. At religion least by the time that Reconstruction had ended, reflect the states’ tendency, when d borrow from language with other states, often little attention to whatever particular theological and po guidance of Almighty God, do ordain Constitution.”). and establish this going forward. preamblesblessing, Type 2 God for a In asking implic- God’sitly assert over human sovereignty affairs. tionalism: the idea, prominent during the Second Great Awakening, a solemnthat God has entered compact with the American people, who were chosen as a symbol for the world of what religious freedom mixed with piety can accomplish. Th ambles“favor” that invoke God’s Ruler of the Universe, and grateful for his goodness . . . .”). Declarations of reverence adopt . . . goodness Ruler of the Universe, and grateful for his gratitude for God’s “goodness” imply something an attitude of worship, and expressions of crucial about God’s nature and an expectation of continued blessings from God. 39285-mqt_100-3 Sheet No. 51 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 51 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 52 Side A 06/19/2017 09:53:44 OWA I . of 1820, See ONST . of 1776, pmbl. . C E ONST Of those twenty, . of 1845. . C In this era, in oth- 32 A 33 765 765 ONST opted thirty-nine new ng the fact that, during ng the fact that, C A . of 1792, pmbl.; M On the eve of the Civil War, . of 1776, pmbl. ONST 34 . of 1777, pmbl.; P . of 1852; L d in a constitution adopted only a d in a constitution . C th preambles referring to God be- the original constitutions of five of the original constitutions of five ONST EL ONST ONST .C C A A ) 6/12/17) 1:49 PM of twenty constitutions. ELETE s included explicit references to Gods included explicit in their D This is notwithstandi OT OT . of 1846; L 31 N O GOD AND STATE PREAMBLES AND STATE GOD . of 1818, pmbl.; D (D . of 1777, pmbl.; P ONST C Indeed, of the twenty-six formed states that the orig- ONST . of 1780, pmbl.;C N.Y. DOCX 30 . ONST .C OWA INAL ONST -F ONN . C C V.T. C UTTLE ASS .See . See . of 1857; I &T 33. The states that adopted constitutions in this era that did not refer to God were Lou- 34. The its reference to sixteen states did not include Pennsylvania, which dropped 31 30 32. Louisiana Iowa adopted two constitutions each during this era. and The overwhelming majority constitutions currently have of states of the eleven states era (1776–1789), only three In the revolutionary In 1860, sixteen states (out of thirty-three) had references to God in In 1860, sixteen states (out of thirty-three) This changed in the 1840s, beginning withThis changed in the 1840s, beginning Island’s new Rhode (and M K MITH MITH ONST C Y inal union or joined the union before 1840, only six (including Penn- the union before 1840, only inal union or joined constitutions wisylvania) adopted tween 1776 and 1840. isiana (twice), Florida, Michigan, Virginia, Kentucky, and Oregon. God in 1790 and did not add one again until 1874. C few years later. 2017] language. in the preamblesthat include to God, that refer this has not always but been become an en- norm did not to God as the Indeed, references the case. least the practice until at trenched middle century. of the nineteenth that adopted constitution preambles. One those (New of simply York, in its 1777 constitution) fromincluded a quotation the Declaration and its ref- of Independence in its 1776 consti- and another (Pennsylvania, erence to the “Creator,” tution) removedreference to Go the 2S thirteen referred to God, including during this era. the six states that joined the union pmbl.; M however, Texas was the only state that would join the Confederacy er words, the majority approach was to refer to God in the preamble. er words, the majority approach was to refer to God in the preamble. Some of the states that adopted constitutions with preambles referring to God moreover, in this era, used “Type 2” language—that is, language that expressly contemplates a more direct involvement by God in human history. the preambles to their constitutions. this era, the twenty-four states collectively ad constitutions. Before 1840, in other words,constitutions. Before 1840, in other in pre- references to God ambles were the exception than the rule. rather Betweenfirst post-colonial-charter) constitution. 1840 and 1860, eighteen states adopted a total 39285-mqt_100-3 Sheet No. 52 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 52 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 52 Side B 06/19/2017 09:53:44 M K C Y [100:757 [100:757 None of the other South- of the None 35 constitutions during this pe- il they adopted new constitu- il they adopted titutions at the end of the war;titutions at the end during a this era that included s referred to God in their pre- adopted a new in constitution ) 6/12/17) 1:49 PM constitutions. (Louisiana continued its pro- constitutions. (Louisiana continued ELETE D d of Reconstruction. d of Reconstruction. OT OT N MARQUETTE LAW REVIEW MARQUETTE y provided many occasions for constitution- many occasions y provided O bles to their constitutions. (D . of 1861, pmbl. DOCX . INAL ONST -F . C EX UTTLE &T 35. T The period betweenThe period 1876 was 1861 and a time of great upheaval, In all, between 1876, twenty 1861 and states collectively different From the end of Reconstruction until the turn of the twentieth cen- Between 1861, when the Civil War began, and 1876, when Recon- MITH MITH and not surprisingl and not making. new states adopted the Confederate Seven of constitutions (four—Virginia,upon secession North Carolina, Mississippi, Ten- and nessee— not); several adopted cons did newall eleven adopted between constitutions three 1868 and 1870; and former adopted new Confederate states constitutions between 1873 then, several of theand 1876. Even secession and readmission consti- the preambles. any references to God in tutions did not include Those such references unt states did not add the en tions during or at ambles; seven of those were western states adopting their original lific constitution-making by adopting two riod.) All sixteen of these constitution 1971.) In addition, five new states the union during this era, joined and four of them (all but West Virginia, which added a preamble with references to God in their pream-a reference to God in 1960) adopted bles. Twenty-seven of the forty-one consti- adopted forty-one constitutions. tutions mentioned God in the preamble, the twenty and sixteen of states adopted at least one constitution seventury, fifteen states (including new the Union) states joining adopted a total of sixteen struction ended, nine of the elevenstruction ended, formerex- Confederate states (all adopted constitutions that referred to cept Louisiana and Tennessee) God in their preambles. (Louisiana adopted such a reference just a few has never done so; and Virginia aban- years later, in 1879; Tennessee doned its reference to God when it reference to God. No state that previously had adopted a constitution reference during this era. By the end referring to God dropped such a of Reconstruction, twenty-nine of the thirty-eight states had references to God in the pream ern states had adopted a reference to God had adopted a ern states constitutions. in their 766 in its preamble. to God had a reference that 2S 39285-mqt_100-3 Sheet No. 52 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 52 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 53 Side A 06/19/2017 09:53:44 .of ONST . of 1889, ONST .C ASH 767 767 EVELOPMENT . N.D. of 1889, pmbl.; C D 36 ONST . of 1895, pmbl.; W at were influential in the late- .C ey have amended their constitu- ONST y nineteenth century and did not y nineteenth century and did not ONT C attention to religious and theologi- ted in discrete constitution-making ISTORICAL TAH that point, however, references to God :H ) 6/12/17) 1:49 PM ELETE D OT OT N mission the Union. to REAMBLES O . M of 1890, pmbl.; GOD AND STATE PREAMBLES AND STATE GOD P (D All to God. one referred but (Virginia, which re- . U of 1889, pmbl.; 37 HE ONST DOCX C . . of 1890, pmbl. ONST INAL III. T ONST -F DAHO .C I UTTLE YO .See &T 36 37. During this period, Georgia and Louisiana adopted three constitutions each, and As should be clear from the overview, the states collectively have From twenty 1900 to the present, a total of twenty- states adopted Taking a longer view,Taking a longer from to the pre- the end of Reconstruction In other words, references to God in state preambles were not typi- As this brief overview makes most clear, references to God in state M K MITH MITH C Y 1840, fewer the states had preambles than one-fifth of to that referred God. In this Part, we in more consider detail the historical development of this trend, with particular cal movements and understandings th eighteenth and nineteenth centuries. and th adopted scores of constitutions, tions on thousands of occasions. of our study, we con- For purposes sidered all state constitutions adop events—either the legislature, or the peo- conventions, by delegates in ple by referendum—from 1776, when the original thirteen colonies de- Michigan and Virginia adopted two each. pmbl.; W six constitutions. ferred to God for the first time God for the first ferred to constitution, omitted in its 1902 the preamble whenmost it adopted its in 1971.) constitution, recent adopted forty-threesent, the states collectively Of constitutions. those, to Godall but one referred the preamble. in Although, as we ex- and Type 2 preambles distinction between Type 1 plained above, the wepoint, significance by this had largely lost note that, of the forty- have preamblesfive states that currently with to God, references twen- and eighteen (or forty percent) use Type 1 language, ty-seven (or sixty 2 language. The morepercent) use Type common approach, then, is to refer to God with usually for liberty, but an expression of gratitude, without a request for God’s blessing. cal in the framing era or in the earl become commonplace until at least a half-century after the ratification of the federal Constitution. At started to become the norm. constitutions were adopted well era. Indeed, in after the founding 1889, pmbl.; S.D. C 2017] upon ad constitutions 2S 39285-mqt_100-3 Sheet No. 53 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 53 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 53 Side B 06/19/2017 09:53:44 , , M K HE See C Y TATE TATE HODE AND S S , TATES 1 T R S UNDAMENTAL ONSTITUTIONS ONSTITUTIONS C C ERRITORIES , F reprinted in HARTER OF EDERAL AND EDERAL AND F ,T , C F TATE TATE In addition, two S S AWS OF THE HE 39 L see, e.g. HE the original thirteen the original thirteen (1662), TATES S see, e.g. [100:757 [100:757 5T RGANIC O EDERAL AND EDERAL AND F F ONNECTICUT HE before admission. We consid- C chose not to replace their colo- chose not to replace reprinted in HE AWS OF THE THER L 5 T O Delaware’s charter, issued by William Penn extent that they became founding we as state constitu- did not treat God, though there was considera- Although we do not view the co- 1 T onnecticut adopted its first post- 38 note 38, at 529–36. Some of the charters express- constitutions that constitutions that (1663), ], or expressing an intent to Christianize the indig- ], or expressing an intent to Christianize the AND HARTER OF , RGANIC ) 6/12/17) 1:49 PM O supra , C reprinted in , reprinted in ELETE D THER HARTERS see, e.g. OT OT O (1669), C 3211–3222 (Francis Newton Thorpe ed., 1909) [hereinafter 5 3211–3222 (Francis Newton Thorpe ed., LANTATIONS N MARQUETTE LAW REVIEW MARQUETTE P ONSTITUTIONS O C (1701), (D 40 AND ONSTITUTIONS , C AROLINA OLONIES DOCX TATE . C C OLONIAL S C INAL ]. ELAWARE TATE ROVIDENCE -F S D P HARTERS AND , C 557–58 (Francis Newton Thorpe ed., 1909) [hereinafter 1 T 557–58 (Francis Newton Thorpe ed., 1909) UTTLE &T EDERAL AND , at 2772–87. F 40. Texas, for example, adopted a charter when it declared independence from Mexico, 38. We closer to state- recognize, however, that some of those charters were perhaps 39. There types of colonial charters. Some were grants of au- were several different Although we considered the MITH MITH ONSTITUTIONS ONSTITUTIONS OF HARTER OF OLONIAL OLONIES ONSTITUTIONS ERRITORIES HE EDERAL AND states (Rhode Island and Connecticut) states (Rhode Island and ratification several decades after independence nial charters until of the federal Constitution. (C independence constitution in 1818, and Rhode Island adopted its first independence constitution in 1818, in 1843.) Finally, some states that were territories before joining the union adopted territorial constitutions state constitutions. ered those constitutions only to the ered those constitutions only to enous peoples of the colony, ly established the Anglican Church as the official religion; lonial charters as state constitutions for the purpose of our study, we state constitutions for the purpose lonial charters as note that many of them referred to and theological claims. content ble variation in their C F C C C C T supra to the and that charter was the governing charter of the Republic of Texas until admission union. We treated Texas’s 1845 constitu- did not consider that charter, however, but rather tions the original thirteen states’ older colonial charters, which thirteen states’ older colonial tions the original were of the people. not adopted as acts 768 most (The present. until the independence, their clared such recent constitution-making event was Rhode in We Island in 1986.) did not amendments,treat individual however constitu- adopted, as discrete tion-making the amendments events unless modifiedadded pream- or as the amendmentbles, such West that 1960. adopted in Virginia but before the rati- independence the assertion of states adopted upon Constitution,fication of the federal 2S ISLAND AND T ments of the people than others. For example, ments of the people than others. For example, C upon its separation from Pennsylvania, was promulgated by order of the Assembly. was upon its separation from Pennsylvania, thority from the King to exercise authority over lands in the new world; others were state- thority from the King to exercise authority the essence of a foundational document. The ments issued by colonial authorities with madecharters’ references to God, other than those in passing (such as “God willing”), were religious liberties, typically used in the course of enumerating 39285-mqt_100-3 Sheet No. 53 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 53 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 54 Side A 06/19/2017 09:53:44 . 46 . of ONST ONST The other other The 48 . of 1784; N.H. C . of 1776; N.C. C In response, seven In response, seven ONST 769 769 43 C ONST of 1862. two consti- states adopted N.H. . of 1776. , 1774–1789, at 342 (Worthington , 1774–1789, at 319 (Worthington 44 See ESERET adopt new constitutions until until adopt new constitutions New Hampshire, which de- which Hampshire, New ONST D 41 .C ONGRESS ONGRESS A happiness and safety of their con- happiness and safety C C . of 1776; N.J. C TATE OF ree included explicit references to Godree included explicit references S ONST . of 1777. . of 1776. Although Georgia adopted a constitution ) 6/12/17) 1:49 PM .C A. 1776–1789 A. 1776–1789 . of 1776; V D ONST ONST ELETE OF THE . ONTINENTAL ONTINENTAL D ONST C C OT OT N ONST O One of the three (Pennsylvania) omitted that ref- GOD AND STATE PREAMBLES AND STATE GOD C (D 47 . of 1776; M . of 1776. See and Massachusetts in 1780. adopted a Constitution . of 1780. DOCX 45 . . of 1778; S.C. C . of 1777; N.Y. C ONST ONST C ONST .C . of 1776; S.C. C INAL ONST ONST -F .C EL N.H. .C OURNALS OF THE OURNALS OF THE D ONST ASS A UTTLE On May 10, 1776, the Congress recommended that all states .C A . See .See &T 42 42 48. Vermont, which hoped to form a separate state, adopted a charter in 1777 and an- 41. J 3 43. J 4 45. G 46. M 47. New adopted two constitutions during this Hampshire and South Carolina each 44 In late 1775, the Continental Congress responded to a query fromresponded to a Congress the Continental In late 1775, Of by eleven states constitutions collectively adopted the thirteen M K MITH MITH C Y New Hampshire recommending by obliquely about independence that adopt a newthe colony constitution. clared independence in early 1776, adopted a constitution in January a constitution early 1776, adopted in clared independence 1776. Chauncey Ford ed., 1905) (recommending that the colonies “establish such a form of gov- Chauncey Ford ed., 1905) (recommending ernment, as, in their judgment, will best produce the happiness of the people, and most ef- the province, during the continuance of the pre- fectually secure peace and good order in colonies”) (alteration in original). sent dispute between G[reat] Britain and the “adopt such government representatives as shall, in the opinion of the conduce to the of the people, best and Americastituents in particular, in general.” other states adopted constitutions in 1776; other states adopted 1776; P other in 1786 that included preambles that referred to God. The neighboring states, howev- other in 1786 that included preambles that referred to God. The neighboring states, not be- er, did not recognize Vermont’s claim to statehood at that time, and Vermont did in 1789, it did so after ratification of federal Constitution, in large part to come into con- in 1789, it did so after ratification of federal Constitution, in large part to come formity with that document. (Connecticut and Rhode Island did not did Island and Rhode (Connecticut later.) several decades between War beginning of the Revolutionary the the ratification of and the federal Constitution, only th in their preambles. as its first constitution. Wetion, adopted upon admission to the union, followed a similar charter as the state of Deseret before its admission approach for Utah, which had adopted a recognizedto the union, though the United States never Deseret, as it had Texas, as an independent sovereign. 2017] 2S tutions in 1777; come a state until 1791. Whenin it achieved statehood, the state adopted a constitution 1793 with no explicit reference to God in the preamble. of 1776; S.C. C erence in a constitution adopted only a fewerence in a constitution adopted years later. era; none of those four constitutions referred to God. era; none of those four constitutions referred Chauncey Ford ed., 1906). Chauncey Ford ed., 1906). 39285-mqt_100-3 Sheet No. 54 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 54 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 54 Side B 06/19/2017 09:53:44 , , , M K LD O C Y EASON URITAN ICHOLS HE P ENTURIES ALDMAN 196, 203– :R C :T W REEDOM IN HURCH AND HE A. N F C ION WO ,T Z T NTENT I 155–57 (2013). OEL TEVEN OUNDERS AR IRST F particularly the ENNA F W .&J S ELIGIOUS K ’ R C R HE RIGINAL ,J MERICAN IVIL M while in New Eng- O :T C EPARATION OF 51 [100:757 [100:757 ,A ITTE 121 (3d ed. 2011) (discussing ,S MERICA W A fluence of religious ideas AND , EORGE IRTH OF MERICA B HALEV A S OHN 187–207 (2014); S AMBERT TATE rigid Calvinism of early Puri- L ,S now states that did to the three XPERIMENT RAN E ELIEFS OF B IBERTY TATE IN d not invoke Godd not invoke con- or any other It is impossible to provide a suc- L RANK S hip between the politi- religion and EVOLUTION TO THE 50 HURCH AND THE R , ,C ) 6/12/17) 1:49 PM ELIGIOUS stitutions of eight of eleven states that eight of eleven of stitutions 60 (2007); E R OLITICS ELIGIOUS rsisted in the South, R ELETE HURCH AND ONSTITUTIONAL ,P HE D void of such references. void of such references. 1–13 (2012); F C RAKEMAN ,C OT OT . of 1776 (stating the purpose to “establish some form of gov- . of 1776 (stating the purpose to “establish ,T EXT FROM THE note 51, at 79–82, 128; G N MARQUETTE LAW REVIEW MARQUETTE T O L. D Christian understandings of God, ATRIOTISM (D ONST Although we turn P UTSON supra RAZER 49 MERICAN , ROVIDENCE RINCIPLE OF DOCX EVOLUTION A . P ONALD H. H L. F R OLITICAL :P P , D , N.H. C INAL UTSON MERICAN -F AITH AMES H AND REGG A , F J At the other end of the spectrum, Unitarianism and Deism UTTLE 52 ix–xvi, 3–4 (2008). OUNDING . See . See, e.g. .See . See, e.g. &T :F 52 50 51 49 The three preambles in this era that mention adopted God reflect a Among and the general populace, there was both elites a signifi- MITH MITH RIGINS OF MERICA ELIGION AND THE EVELATION ESTAMENT AS A OUNDING TATE on the Revolution and Founding. on the Revolution invoke God in their revolutionary-era preambles,invoke God in their we do not wish to obscure the fundamental point that most era chose of the states in this de to adopt constitutions range of views about the relations cal community. in the Revolu- is a vast literature on religion There tionary Era, and more on the in particularly the division of “Lutherans, Presbyterians, and other denominations into northern and the division of “Lutherans, Presbyterians, and other denominations into northern southern branches”). 14 (2010); G S A O T R F R 770 the two that Georgia each (including constitutions states adopted eight to God in include references not that did Carolina adopted) and South their preambles. words, In other state of thirteen revolutionary-era ten con (and the constitutions 2S this era) di constitutions in adopted in their preambles.ception of the divine Most of those constitutions, instead opened with adopted in 1776 and 1777, particularly those a statement grievances with of the British Crown, as did the Declaration of Independence. ernment” after having “taken into our serious consideration the unhappy circumstances, ernment” after having “taken into our serious of many grievous and oppressive acts of the into which this colony is involved by means and constitutional rights and privileges”). British Parliament, depriving us of our natural tanism. land Congregationalism succeeded the cinct summary of that literature, but nonetheless important to highlight several themes that bear directly on our thesis. At the orthodox end of the spectrum, cant diversity of religious views. traditional Anglicanism pe rejected traditional rejected 75–80 (2008) (discussing Anglicanism in Virginia); J 39285-mqt_100-3 Sheet No. 54 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 54 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 55 Side A 06/19/2017 09:53:44 55 54 On the one 57 771 771 . at 132–34 (noting continuing forms gland, the crucial relationships gland, the crucial relationships But see id n unalienable rights.” e understanding that religion is an e understanding ed of all believers an authentic individ- believers an authentic ed of all This does not mean that the prevailing ) 6/12/17) 1:49 PM 56 incorporated this viewincorporated this its preamble. in vement of the idea and in history, of God ELETE D note 50, at 51. OT OT N note 51, at 129–31. note 51, at 76. O GOD AND STATE PREAMBLES AND STATE GOD supra Equally important, Equally the middle of the spectrum re- (D , 53 supra supra , , DOCX . notes 69–81 and accompanying text. INAL -F UTSON UTSON RAKEMAN H H D . of 1777, pmbl. UTTLE ple . . . to assume among the powers of the earth the separate and equal . . ple station to which the laws of nature and of nature’s God entitle We hold these truths to be self-evident, that all men are creat- . . . . them ed equal; that they are endowed by their Creator with certain unalienable rights[.] . See . See infra .See .See &T ONST C 57. When, for one peo- in the course of human events, it becomes necessary 54 55 56 53 This diversity of religious thought has practical implications religious thought has practical This diversity of for the The three states in this era that adopted constitutions withThe three states in this era that pream- M K MITH MITH C Y era’s understandings of the relationship betweenera’s understandings civil religion and government. In New the region dominated England, by Puritanism’s governmentssuccessors, revolutionary-era of a close reflected the idea link between only the Massachu- faith and political society, although expressly setts constitution hand, the preamble (unlike most other preambles proclaims of the era) of state involvement with religion). N.Y. Outsideof New England, however, the broad diversity of religious viewsultimately converged on th essentially individual matter. 2017] invol the of Christ, divinity eternal judgment. 2S were between the individual and God and the individual and the po- the individual and God and were between the individual litical community, any direct relationship between rather than God and civil government. of religious views.bles referring to God Indeed, reflect this diversity New York’s preamble of contains within its language the full range views The preamble in this era. simply quoted, verbatim, from the Declaration including its reference to “the laws of Independence, of . are en- . . its assertion that “all mennature and of nature’s God” and dowed by their Creator with certai view all relationship between in this era denied God and the political community, but outside of New En flected the influence of the First Great Awakening,the First Great influence of flected the which contrasted rather than the of the heart of a religion in its revival with orthodoxy head. This movement demand ual experience of rebirth in the Spirit, in sharp contrast to the arid doc- rebirth in the Spirit, in sharp contrast ual experience of in manytrinal preaching Anglican churches. and Congregationalist 39285-mqt_100-3 Sheet No. 55 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 55 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 55 Side B 06/19/2017 09:53:44 63 M K C Y 61 recting human affairs, [100:757 [100:757 To be sure, the “Author To be sure, is State . . . deliberately to 62 ey shall think best . . . .” It opened by declaring that its It opened by declaring that its y attain, by perfecting the arts of y attain, by perfecting the arts Author of existence has bestowed upon Author of existence has bestowed ) 6/12/17) 1:49 PM about God’s continuing sovereignty over about God’s continuing continuing role in di note 51, at 118. in describing a God who creates the natural ELETE D supra , OT OT N MARQUETTE LAW REVIEW MARQUETTE note 51, at 95–98. O (D ICHOLS supra For this reason, although it did not express gratitude although it did not express gratitude For this reason, , DOCX . . of 1776, pmbl. &N 59 INAL ITTE -F UTSON ONST It then stated that the delegates “confess[] the goodness of It then stated that the delegates W H .C On the other hand, the preamble, other hand, the On the in its focus on individual A 60 UTTLE 58 .See .Id. .See &T 63. N.Y. Const. of 1777, pmbl. 58 61 62 59. By natural law and rights, the preamble (and the identifying God as the source of 60. P The preamble to 1776 constitution also referred to Pennsylvania’s Notwithstanding the Quaker tradition in Pennsylvania, the lan- MITH MITH of existence” formulation, order but may not play any is similar to the idea of God reflected in the 1777 New preamble. York purpose was “to enjoy their natural rights, and to enable individuals the other blessings which the to God for liberty, Newto God for liberty, York’s 1777 preamble was the earliest Type 1 preamble. God,language and implicit but its claims of reflect different strands revolutionary-era religious thought. man[.]” the great Governor of the universe (whothe great Governor of the universe alone knows to what degree of earthly happiness mankind ma government) in permitting the people of th form for themselves such rules as th just But the collective confession of belief in the goodness of the “great belief in the goodness of the But the collective confession of 772 of the source to be God declares and expressly of God existence the the preambleIn this respect, liberty. influence of Congre- reflects the Newgationalist England, which emphasized of the public recognition divine. 2S Declaration) emphasizes the role of divine authorship, but not divine involvement in histo- Declaration) emphasizes the role of divine ry; God creates the order, which is fundamentally normative, but leaves human action free reason within that construct. On this view, God creates man with the capacity to exercise direction and construct rational, free systems of government. But God’s involvement in the of human affairs, and in particular political affairs, ends with the act of creation. human affairs. natural rights, highlights only God’srights, highlights natural withrelationship the individual, was language the direct relationship betweenrather than any and the political God sense, this In creator. as role God’s and community, also consistent with the Unitarian and Deist as well traditions, as the the First Greatcore traditions of Awakening. In addition, the preamble makes claim no express guage of the preamble reflects an orthodox Calvinismguage of the preamble that is closely reflects an orthodox Congregationalism. New England to related 39285-mqt_100-3 Sheet No. 55 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 55 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 56 Side A 06/19/2017 09:53:44 ]; TATE S 3749–51 3737–39 OLONIAL OLONIAL C C RTICLES OF ONSTITUTIONS A OLONIES OLONIES C C C See EDERAL AND TATE F S AND AND , , ONSTITUTIONS ONSTITUTIONS 66 C HE C 773 773 TATE TATE These claims well go be- S S ERRITORIES ERRITORIES 65 EDERAL AND ,T ,T F HE First, the Pennsylvania pream- Pennsylvania First, the 64 TATES TATES S S guishes Pennsylvania’s preamble Pennsylvania’s guishes EDERAL AND F EDERAL AND F anding suggested by Newanding suggested York’s pre- HE ) 6/12/17) 1:49 PM HE 6 T AWS OF THE AWS OF THE ELETE L L 7 T D OT OT N O GOD AND STATE PREAMBLES AND STATE GOD RGANIC RGANIC reprinted in (D O O reprinted in DOCX . . of 1776, pmbl. THER THER of 1777, art. XIII (“And whereas it has pleased the Great Governor of the of 1777, art. XIII (“And whereas it has pleased O O INAL ]. Ethan Allen played a role in drafting Vermont’s secession constitutions; a . of 1777, -F ONST .C . (1786), AND AND , , A UTTLE Whereas, all government ought to be instituted and supported . . . to . . . Whereas, all government ought to beand supported instituted enable the individuals who composeenjoy their natural rights, and it, to existence has bestowed upon the other blessings which the Author of man . . . . . met, for the ex- . . We of the freemen of Vermont the representatives confessing the goodness of press purpose of forming such a government, degree alone, knows to what the Great Governor of the universe, (who by perfecting the arts of gov- of earthly happiness, mankind may attain, ernment,) in permitting the people of this State, by common consent, for themselves, such just rules and without violence, deliberately to form [do] or- . . . future society; as they shall think best for governing their dain . . . . ONST .C &T ONST T 66. Unlike that would become more common seventy years lat- the Type 2 preambles 65. P 64. later, Confederation, adopted two years The closing provision of the Articles of The preambles to Vermont’s 1777 and 1786 pre-statehood constitutions were very simi- The preambles to Vermont’s M K V .C MITH MITH T HARTERS HARTERS ONSTITUTIONS ONFEDERATION C Y echoes the religious language in Pennsylvania’s preamble. echoes the religious V yond the individualist underst yond the individualist amble, proclaim and instead a communal with relationship God. assertions makeTogether, these Pennsylvania’s 1776 preamble more preambleslike the Type 2 would that become common middle in the century than theof the nineteenth Type 1 preambles, which merely to God as the source of liberty. expressed gratitude C C C from New York’s in important ways. C 2017] distin the universe” of Governor 2S er, however, Pennsylvania’s 1776 preamble did not appear to contemplate a God who was er, however, Pennsylvania’s 1776 preamble the God contemplated in the preamble directly engaged in human history. Although happiness mankind may attain, by perfecting the “alone knows to what degree of earthly worldly task of self-governmentarts of government,” that God leaves the to mankind— world to incline the hearts of the Legislatures we respectively represent in Congress, to ap- we world to incline the hearts of the Legislatures said articles of confederation and perpetual un- prove of, and to authorize us to ratify the ion.”). (Francis Newton Thorpe ed., 1909) (same) [hereinafter T (Francis Newton Thorpe ed., 1909) [hereinafter 6 T who can “deliberately . . . form for themselves such just rules as they shall think best”—and. form for themselves such just rules as they shall think . . who can “deliberately thus does not foreordain the success or failure of that enterprise. ble purports to assert a collective belief in the goodness of God. in the goodness collective belief to assert a ble purports Se- asserts a claimcond, it God’s about omniscience declaring that God in “alone knows to what happiness mankind of earthly degree may at- the arts of government.”tain, by perfecting lar to Pennsylvania’s 1776 preamble. See 39285-mqt_100-3 Sheet No. 56 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 56 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 56 Side B 06/19/2017 09:53:44 , 68 M K C Y REEN THAN and MERICA E ATURAL 69 A N K. G TEVEN ENTURY S C See generally YSTEM OF S See ]. Massachusetts thus [100:757 [100:757 INETEENTH N OMPENDIOUS C A ISESTABLISHMENT , ch it appeared to contemplatech it appeared to a TATE IN D S OR ; AN ECOND M S ) 6/12/17) 1:49 PM HE HURCH AND ,T ELETE :C D RACLE OF OT OT O REEN N In contrast, Massachusetts, In contrast, that the other state MARQUETTE LAW REVIEW MARQUETTE Although Massachusetts was alone among not O 67 70 (D NLY O . of 1780, art. III (providing for funding for Christian congregations to DOCX . . of 1776. HE ,T INAL ISESTABLISHMENT art. II. CONST -F . ONST D .C ASS A EASON UTTLE We, . . . the people of withhearts, the goodness of the great Legisla- grateful Massachusetts, acknowledging, us, in the course of Histor of the universe, in affording providence, an opportunity . . . of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a the follow- and establish, ordain, do agree upon, design, . as the Constitution of the Commonwealth of . . ing (1836). Vermont claims to statehood were not successful until fifteen years later, (1836). Vermont claims to statehood were . See id. ,R &T ECOND S 70 69. M 68. At War, the beginning of the Revolutionary nine of the colonies either had an es- 67. P Consistent with this approach, Massachusetts’s preamble provides: Although the preamble the Although God’s of robust understanding a envisions Massachusetts’s a state church 1780 constitution established MITH MITH LLEN ELIGION HE asserted that it is the “duty of all men in society, publicly, and at stated in society, publicly, and at stated the “duty of all men asserted that it is seasons, to worship Supreme the the great Creator and Preserv- Being, er of the universe.” referred to God in the preamblereferred constitution, to its revolutionary-era morehad a longer and support for and tradition of state entrenched enforcement thirteen states, than any of the other original of religion relationship between the and religion. state the states in this era in its establishmentthe states in this church, its constitu- of a state in the degree to whi tion was unusual role in the political community,role in the constitution did 1776 Pennsylvania’s not otherwise contemplate between a direct relationship or enforce re- the state. ligion and few years later, he wrote a treatise that is infused with Deist thought. few years later, he wrote a treatise that is A R T 774 its 1780 constitution. a fact that pervades 2S promote the moral development of the citizenry). 119–45 (2010) [hereinafter G tablished church or provided direct aid to churches. (Only Rhode Island, New Jersey, Del- tablished church or provided direct aid to churches and did not provide direct aid aware, and Pennsylvania did not have established churches or aid to churches in most of New York, to churches.) There were not established City had established churches. By 1791, how- either, though four counties near New York all but three of those states hadever, when the Bill of Rights was ratified, effectively ended its state their establishments or direct support for churches. (Connecticut disestablished church in 1818, New Hampshire in 1819, and Massachusetts in 1833.) quickly became the exception in its establishment of religion. and the state’s constitution adopted upon admission to the union did not refer to God. and the state’s constitution adopted upon 39285-mqt_100-3 Sheet No. 56 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 56 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 57 Side A 06/19/2017 09:53:44 75 . at Id 775 775 n for future guidance in n for future guidance This conception is apparent is apparent This conception 72 s on the assumption mere that and not subject to the con- Neither can the laws pre- perfected by religious duty depends perfected by religious duty depends 74 er and disposition of the human heart, and before ) 6/12/17) 1:49 PM note 51, at 33–36. ELETE D supra , OT OT 71 N O GOD AND STATE PREAMBLES AND STATE GOD (D ICHOLS DOCX . &N INAL ITTE -F . at 405–06 (“Civil government availing itself only of its own therefore, pow- W pmbl. UTTLE Massachusetts. the duties of charity and hospitality, benevolence and the duties of charity and hospitality, good . . . are neighborhood moral duties, flowing from the disposition of the heart, troul of human legislation. vent, by temporal punishment, secret offences, committed without witness, to gratify malice, revenge, or any other passion, by assailing the most important and most estimable rights of others. . See id .Id. .Id. .See &T Religion played a key role in this political order because, as The- Religion played a key role in this 75 74. Barnes v. First Parish of Falmouth, 6 Mass. 401, 405 (1810). Barnes involved a claim 71 72 73 Notwithstandingpervasive recognition of God the the and religion, The animating republican- of the 1780 constitution is civic principle Civic republicanism thus proceed In contrast to Pennsylvania’s 1776 preamble to Pennsylvania’s In contrast and New York’s 1777 M K 73 MITH MITH C Y ers, is extremely defective; and unless it could derive assistance fromers, is extremely someand unless it could defective; superiour [sic] power, whose laws extend to the temp consti- whom no offence is secret; wretched indeed would be the state of man under a civil tution of any form.”). 404. by a Universalist teacher for payment from public funds for his religious instruction. This understanding of civil order This understanding of civil order 2017] 2S ophilus Parsons, the principal author of the 1780 constitution and later ophilus Parsons, the principal author a judge on the Massachusetts Supreme Court, explained, both in the idea of divine providencethe idea of divine both in in the sufferance, invoked and petitio first half of preamble, and in the explicit the second half of the preamble.the second half of of an histor- Because of its conception the Massachusettsically engaged God, preamble is the clearest early example of a Type 2 preamble. Massachusetts reflect an official effort to advance constitution does not the provisions de- purpose of saving souls. Instead, religion for the a morescribed above reveal instrumental viewof religion. ism: the view morality political order depends on the that a healthy of the citizenry and the community as a whole, and that the government has an affirmative obligation to shape and maintain that moral identity. temporal law is inadequate to ensure moral, civic-minded behavior. preamble, the 1780 Massachusetts preamble contemplates a God who engaged in humanis deeply history. 39285-mqt_100-3 Sheet No. 57 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 57 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 57 Side B 06/19/2017 09:53:44 M K 77 C Y [100:757 [100:757 Second, and related, it 78 ed to “promote [the people’s] nation of Protestantism as de- of the public worship of God, stitution of the public worship of stitution of the public worship in purely instrumental and secular e relationship between civil and re- to dispense eternal punishmentto dispense and ns in piety, religion, and morality.” he happiness of a people, and the good a people, he happiness of art. III (1787) (promoting education by stating “Re- ) 6/12/17) 1:49 PM ELETE D RDINANCE OT OT O N MARQUETTE LAW REVIEW MARQUETTE O 79 (D . of 1780, art. III. . of 1780, art. III. DOCX . ORTHWEST ONST ONST INAL N It also notes that “t It also notes that , 6 Mass. at 406 (“[T]he people of Massachusetts, in the frame of their gov- -F .C .C 76 ASS ASS UTTLE . Id. Cf. .Barnes &T 78. M 77 79 76. M Article III thus highlights two related ideas that mark its civic re- The civic republican visionThe civic republican of th MITH MITH ernment, adopted and patronized a religion, which, by its benign and energetic[] influences, might co-operate with human institutions, to promote and secure the happiness of the citizens, so far as might be consistent with the imperfections of man.”). publican lineage. First, the provision emphasizespublican lineage. First, the provision the importance of re- Governmentligion for a healthy civic order. is not support for religion “good but rather is designed to secure for the purpose of saving souls, order and preservation of civil government.” ligion, morality and knowledge, being necessary to good government and the happiness of ligion, morality and knowledge, being necessary to good government and the happiness mankind, schools and the means of education shall forever be encouraged.”). does not specify any particular denomidoes not specify any particular serving of or entitled to public support. The political function of reli- serving of or entitled to public gion is served, on this view, by elements common to a wide of range the belief in a systemProtestant traditions, specifically divinely or- of dained moral and a God who duties, the existence of an afterlife, judg- that afterlife. Articlees and punishes transgressors in III thus justifies public financial support for religion terms: government for a peaceful and support for religion is necessary law-abiding society. and for the support and maintenanceand for the support public Protestant teachers of of morality”—ispiety, religion, and design of their gov- secure the good order and preservation happiness, and to ernment.” ligious obligations is particularly apparent in Articleligious obligations III of the constitution’s Declaration of Rights, which for state funding of provides states that the sup- The provision explicitly Protestant congregations. port it authorizes—”for the institution reward. Civic republicanism assumes that when memberssociety of such rewardslong for eternal punishment, afterlife, or fear in the they are more act in a civic-minded likely to manner. and righteous 776 whoin particular and in history, engaged attends who is a God upon to human sin and merit in order 2S God, and of the public instructio order and preservation of civil government,order and preservation upon essentially depend piety, religion, and morality,” which “cannot be generally diffused through a community but by the in 39285-mqt_100-3 Sheet No. 57 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 57 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 58 Side A 06/19/2017 09:53:44 ., 83 . of . of TATE —its —its S 84 ONST ONST .C On this On this ASS NTIEAU ET AL 81 J. A EDERAL AND F HE HESTER 6 T 777 777 C tent, than that of Massa- see . of 1778, §§ III, XII, XIII, its 1776 oning God, eight included oning God, have a firm of its persuasion for requiring adherence to reprinted in ONST . of 1776, art. XXXV; M . of 1776, art. XXXV; stitution, an instrumental view . of 1784, arts. XXIX, XIV; N.J. C a God who is “the rewarder of in particular the belief that Godin particular the opted constitutions in the revolu- opted constitutions ONST S.C. C ONST holy community, with the glorifica- .C 102–04 (1965). life. For example, although Pennsyl- see D office holders to declare the following to declare office holders ) 6/12/17) 1:49 PM antor of public rectitude. antor of public rectitude. or to be adherents of a Protestant faith. or to be adherents of a Protestant 82 ELETE note 51, at 119, 139 (linking language in oath clauses to note 51, at 119, 139 (linking language in D . of 1777, ch. II, § IX, OT OT ONSTITUTIONS . of 1776, § 10. Vermont also included such a provision in its N C supra ONST O . of 1776, art. XXXII. Although South Carolina’s 1778 constitution GOD AND STATE PREAMBLES AND STATE GOD , (D ONST .C T TATE . of 1780, ch. VI, art. I. . of 1780, ch. VI, art. note 66, at 3743, but it did not become a separate state until 1791, and .C S ONST V . of 1776, art. XXII; M . of 1777, art. VI; N.H. C A DOCX UTSON . . of 1776, § 10. . of 1776, § 10. see ONST supra , H INAL , ONST ONST -F .C ONST .C .C NDER THE .C A ASS Viewed of the Massachusetts other provisions in light of the EL A U UTTLE 80 . See, e.g. &T 82. D 81 83. G 84. P 80. M This view apparently was widely shared in the revolutionary era. This view was apparently widely shared in the revolutionary era. This instrumentalThis in- also in politics role religion’s of conception M K MITH MITH ONSTITUTIONS ELIGION C Y constitution, the oath requirementconstitution, a view does not reveal the gov- that ernment is, or ought to be, itself a aim.tion of God as its civic republican view Instead, it reflects the that morality and depends on religion, would who punish in the afterlife those committed transgressions in temporalthis life, and that law, a itself, cannot generate or sustain by of democraticcitizenry capable republican government. its 1793 constitution did not include such a requirement, terms identified a secular justification Christianity. By requiring a belief in view, belief an office holder’s personal eternal pun- in the possibility of ishmentan important is guar John Adams’s view that religion is a necessary means of achieving republican government, John Adams’s view that religion is a necessary of adherence to conscience officials might not an end of itself, because without a guarantee be tempted to subordinate the public will to personal benefit). 1777 constitution, truth.” forms provision requiring the believe the Christianoath: “I religion, and C The particular oaths required of office holders often revealed, as did The particular oaths required of the provisions of the Massachusetts con 2017] of the role of religion in political 2S membersvania’s 1776 constitution required of the legislature to declare an oath more specific, in its religious con chusetts—by requiring an acknowledgement of that “the Scriptures the Old and New Testament [were] given by Divine inspiration” 1780, ch. VI, art. I; P 1776, art. XIX; N.C. C limited eligibility for office to Protestants, constitution did not include such a provision. R Although ad only three of the states tionary era that included preambles menti to declare an oath stating a either provisions requiring office holders belief in the Christian faith 39285-mqt_100-3 Sheet No. 58 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 58 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 58 Side B 06/19/2017 09:53:44 . M K EL . of C Y TATE By By 2004 D S 89 ONST See C EDERAL AND F Carl H. Esbeck, HE but several of See EDERAL AND 88 7 T F . of 1776, art. XXXVII; HE d not reflect a prac- ONST [100:757 [100:757 7 T public order and the public order and .C reprinted in D the oath requirement’s the as- 85 § 39, note 82, at 103. id. reprinted in for civic-mindedbehavior by w constitutions that did so. supra civil government exists to pursue ., particular religious beliefs amended and that approach trickled down and that approach to . of 1778, art. XXI. These provisions convention- 87 ET AL , Indeed, the relationship between Indeed, the relationship reli- . of 1777, art. LXII; M ) 6/12/17) 1:49 PM ONST 86 the maintenance of ELETE ONST NTIEAU D A .C These oath clauses thus di These oath clauses OT OT A note 66, at 3770. Kentucky’s original constitution, adopted in N MARQUETTE LAW REVIEW MARQUETTE See O . of 1792, art. I, § 2 (eliminating oath requirement and expressly (D supra , note 66, at 3767, 3769, and declared all persons who have resided in . of 1793, ch. II, §§ 12, 29, DOCX . art. VI, cl. 3 (“[N]o religious Test shall ever be required as a Qualifica- ONST . supra ONST .C INAL , ONST EL -F .C C . 1385, 1457–540 (2004). T . of 1776, art. XXXI; S.C. C D EV V UTTLE ONSTITUTIONS see .Id. .See L. R ONST . of 1776, art. XXIX; G C &T 88. Vermont’s adopted in 1793, required only a secular oath of original constitution, 87. U.S. 85 86. for office often co-existed with the oath clauses and religious requirements Indeed, 89 The oath clauses thus wereThe oath consistent with view the aim that the of In any event, the oath clauses and religious requirementsIn any event, the for office MITH MITH ONSTITUTIONS ONST TATE office, elected officials beyond the prospect of mere beyond elected officials temporal punishment. piration was to provide an incentive was to provide piration tion to any Office or public Trust under the United States.”). tion to any Office or public Trust under the ally were justified on the ground that, as the 1777 New York constitution explained, “minis- ally were justified on the ground that, as dedicated to the service of God and the care of ters of the gospel are, by their profession, the great duties of their function.” N.Y. souls, and ought not to be diverted from the state for two years eligible to hold public office, 1792, did not specifically ban religious tests for office, but it also did not impose any such 1792, did not specifically ban religious tests for office, but it also did not impose tests or oath requirements. the states. In the years that followed, not only did most new admis- not only did years that followed, the states. In the sions to the union refrain from imposing religious tests, C S C 778 the wicked,” of the punisher and the good 2S the states that had previously imposed religious requirements for office or required oaths declaring those provisions to eliminate the oath requirements and expressly ne prohibit religious tests, or adopted 1777, § XXXIX. Perhaps more important, the oath clauses and religious requirements co- 1777, § XXXIX. Perhaps more important, existed (even if not perfectly harmoniously) with provisions guaranteeing the free exercise adopted between independence and the ratifica- of religion. Indeed, the state constitutions contained protection for the free exercise of reli- tion of the federal Constitution generally that guarantee in practice. gion, even if the states did not always respect Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, Dissent and Disestablishment: The Church-State B.Y.U. separate provisions barring members of the clergy fromseparate provisions barring members of eligibility for civil office. N.C. C gion and politics that the oath clauses contemplatedgion and politics came not through religious beliefs of in- state, but rather through the a confession of the dividual office holders. tice of states claiming for themselves identity. a religious for long. In 1789, thedid not endure prohibited federal Constitution federal office, religious tests for preservation of civil liberty. preservation of civil government and that is secular earthly ends, including 39285-mqt_100-3 Sheet No. 58 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 58 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 59 Side A 06/19/2017 09:53:44 . A . of 1844, . of 1835, art. ONST . of 1835, art. I, C Other states states Other ONST . of 1876, art. I, § 4. . of 1876, art. I, § 4. ONST 90 N.J. art. II, § 5 (eliminat- .C .C id. See . of 1874, art. I, § 4; P ONST ENN ENN .C 779 779 ONST EX .C . of 1877, amends. to the Const. constitutions during the constitutions during A , 367 U.S. 488, 496 (1961). The Su- ONST . art. XVII, § 4 (“No person who de- C us oath requirementsus oath shortly 92 ONST N.H. . of 1789, art. I, § 15; tion, like the rest of the document,tion, like the rest . of 1867, art. 37—persisted until 1961, when See ONST S.C. C . of 1796, art. VIII, § 2. When the state adopted a ONST .C Torcaso v. Watkins See .C A . of 1868, art. XIV, § 6; T . of 1868, art. XIV, § 6; ) 6/12/17) 1:49 PM D ONST . of 1868, art., VI, § 5; P . of 1868, art., VI, § 5; .C , M note 82, at 103. ELETE ONST . of 1790, art. IV, though it continued to ban clergy from . of 1790, art. IV, though it continued to D ENN ONST OT OT . of 1868, art. XIV, § 6. The current South Carolina constitution Carolina constitution . of 1868, art. XIV, § 6. The current South C supra tions on religious tests for office. religious tests tions on N ONST see, e.g. ., O Only a few them, declined to abandon to leading C GOD AND STATE PREAMBLES AND STATE GOD 91 (D ONST N.C. C S.C. . of 1843, art. I, § 3. DOCX See . art. I, § 23. In 1868, however, South Carolina adopted a new constitu- art. I, § 23. In 1868, however, South Carolina . of 1780, amend., arts. VI, VII (eliminating religious components of oath VI, VII (eliminating religious components . of 1780, amend., arts. see McDaniel v. Paty, 435 U.S. 618, 629 (1978). McDaniel 435 U.S. 618, 629 (1978). v. Paty, INAL ONST -F NTIEAU ET AL See see id. ONST C A .C UTTLE R.I. ASS .See . of 1790, art. IX, § 4; S.C.. of 1790, art. IX, § 4; C &T See 92. When contained a Tennessee joined the union in 1796, its original constitution 91. New Hampshire eliminated the provision requiring office holders to be Protestant 90 Eight of the eleven states that adopted Eight of the eleven M K MITH MITH ONST C Y the Supreme in the Court’s decision, half of the twentieth second century, that such requirements Free Exercise Clause, as incor- violate the Amendment.porated by the Fourteenth of 1792 29. pt. II, § ing requirement only a secular oath of of- office holders be Protestant and requiring that fice); M § 4, but paradoxically maintained the disqualification from office for persons “who den[y] § 4, but paradoxically maintained the disqualification T and punishments,” the being of God or a future state of rewards nies the existence of a Supreme Being shall hold any office under this Constitution.”).nies the existence of a Supreme Being shall New until 1844, but when it did it eliminated the reli- Jersey did not adopt a new constitution gious component of the oath of office, requiring only a secular oath. for office holders and requiring only a secular oath). South Carolina eliminated requiring only a secular oath). South for office holders and the requirement in its 1790 constitution by requiring only a secu- that office holders be Protestant lar oath of office, new constitution in 1835, it banned religious tests for office, see T new constitution in 1835, it banned religious C prohibiting religious tests for office); G prohibiting religious 2017] more1860, of the then-admitted half than prohibi- had express states their constitu tions in 2S § VIII. Similarly, Rhode Island, which relied on its colonial charter instead of adopting a § VIII. Similarly, Rhode Island, which relied expressly prohibited religious tests or disqualifica- constitution during the founding period, when it adopted its first state constitution in tion from office on account of religious beliefs 1843. IX. Four other states—North Carolina, Pennsylvania, South Carolina, and Texas—adoptedIX. Four other states—North Carolina, Pennsylvania, similar provisions. retains this (unenforceable) provision. clause excluding from office any person “who denies the being of god, or a future state of clause excluding from office any person rewards and punishments.” T when it adopted a new constitution in 1877. when it adopted a new constitution in 1877. The net effect of these provisions was to impose a religious test for office without expressly The net effect of these provisions was to impose a religious test for office without pro- requiring office holders to swear an oath with any particular religious content. These visions—along with the few remaining provisions requiring office holders to believe in God or to declare such a belief, the Supreme Court invalidated them in preme Court later invalidated state constitutional provisions excluding clergy from eligibil- preme Court later invalidated state constitutional provisions excluding clergy from ity for office. eliminated or religio religious tests their after the Civilafter the War. public office, tion that included a provision that disqualified from office those who deny the existence of tion that included a provision that disqualified a supreme being. S.C. revolutionary era chose preambles that did not refer to God. Similarly, Similarly, chose preamblesrevolutionary era did not refer to God. that the preamble to the federal Constitu 39285-mqt_100-3 Sheet No. 59 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 59 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 59 Side B 06/19/2017 09:53:44 M K HE HE C Y 3 T 2 T RTICLES See reprinted in 589 (Merrill Jensen et and the Committee and the ] (“Resolved that the arti- 95 [100:757 [100:757 note 96, at 209, 651. The pa- 1787,(Max at 20 Farrand ed., Outline of the Plan, The Plan of supra ONSTITUTION (Feb. 11, 1788), See , C ONVENTION C ]. Even this was a change from the con- ERCURY The delegates’ adoption of a pre- The delegates’ .M ONVENTION OF 97 EDERAL ONVENTION C M 1787, at 565, 651 (Max Farrand ed., 1937) [herein- F C the Virginia Plan, the Virginia ONVENTION Indeed, the convention does not seem does convention the Indeed, The Committee’spreamble— proposed ) 6/12/17) 1:49 PM C 93 96 EDERAL ATIFICATION OF THE EDERAL F ELETE R F D EDERAL OT OT F N MARQUETTE LAW REVIEW MARQUETTE , Treaty of Alliance with France, Fr.-U.S., Feb. 6, 1778; A ONVENTION OF O ECORDS OF THE C R (D Some preamble language in the of the that the con- HE 94 See, e.g. DOCX of 1777; Treaty of Paris, Gr. Brit.-U.S., art. I, Sept. 3, 1783. . EDERAL ISTORY OF THE ECORDS OF THE F ECORDS OF THE H INAL R R -F ECORDS OF THE HE HE R . pmbl. UTTLE We the people of the United States, in a firm belief of the being and per- He will require of all moral . . . God fections of the one living and true rightful powers among men agents an account of their conduct, that all God, therefore in a de- from are ordained of, and mediately derived of His efficient protec- pendence on His blessing and acknowledgment tion . . . . ion, establish Justice, insure domesticion, establish Justice, Tranquility, provide for the com- the general Welfare,mon defence, promote and secure the Blessings of ordain and establish this Con- Liberty to ourselves and our Posterity, do stitution for the United States of America. HE &T ONST ONFEDERATION C 95. T 1 94. New Jersey Plan, which the Even the preamble to Charles Pinckney’s proposed 96. TheStyle’s first draft of the preamble referred to the people of the Committee on 93. We of the United States, in Order to form the people a more perfect Un- 97. T 2 C MITH MITH OCUMENTARY ECORDS OF THE after 2 T vention ultimatelyvention from adopted derives that Edmund the resolution offered in proposing Randolph al. eds., 1978). This proposal obviously was unsuccessful. al. eds., 1978). This proposal obviously was pers of various delegates to the Convention confirm that the convention did not even con- pers of various delegates to the Convention confirm that the convention did not even OF R D 780 makes to God. reference no 2S 1937) [hereinafter 1 T Convention essentially rejected, did not refer to God. Convention essentially rejected, did not refer Presented to the Federal Convention (1787), Charles Pinckney (South Carolina), [https://perma.cc/5V85-L3YF]. http://avalon.law.yale.edu/18th_century/pinckney.asp WilliamDuring the ratification debates in Connecticut, Williams urged the adoption of a new preamble that would have stated, William Williams, to the Printer, A Letter various states, which it listed, rather than the people of the United States. various states, which it listed, rather than cles of Confederation ought to be so corrected & enlarged as to accomplish the objects pro- cles of Confederation ought to be so corrected security of liberty and general wel- defence, posed by their institution; namely “common fare.”). which declared the Constitution an act of “We the People of the United States”—”passed without debate.” vention followed in earlier foundational documents, which did not use the word “people” but instead used the term the “United States” as a plural noun or simply listed the states in geographical order. on Style drafted the rest of it.on Style drafted only meaningful The debate over the preamblelanguage of the was whether over of con- to attribute the act stitution-makingstates, or instead to the to the people of the several people of the United States. U.S. even to have considered any proposal that included a reference to God a reference that included any proposal considered even to have in the preamble. 39285-mqt_100-3 Sheet No. 59 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 59 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 60 Side A 06/19/2017 09:53:44 98 781 781 note 95, at 452. Concerned supra , federal Constitution, in other After Alexander Hamilton and others . us obligation in its constitution us obligation in at 137–38 (papers of George Mason) (stating al states had adopted constitutions al states had adopted ONVENTION C at 451–52 See id. During period, thirteen new this states Id. 99 ) 6/12/17) 1:49 PM B. 1790–1840 EDERAL ELETE F D OT OT N O GOD AND STATE PREAMBLES AND STATE GOD at 452 n.15. (D Id. . of 1790, pmbl. (“We, of Pennsyl- the people of the Commonwealth DOCX . at 150, 152, 163 (notes of James Wilson) (focusing on how to style the na- ONST ECORDS OF THE id. INAL R .C -F A HE P UTTLE .See &T 98. T 1 99 Between the ratification of the federal Constitution, 1790, right after At time the of the of the ratification M K MITH MITH C Y and 1840, twenty states collectively adopted twenty-five constitutions. and 1840, twenty collectively adopted twenty-five states constitutions. Only four contained preambles that mentioned and one of the God, to God removedstates that had previously referred the reference when it adopted a new constitution. morning before we proceed to business, and that one or more of the Clergy of this City be be City this of proposed “humbly applying to the Father of about the delegates’ lack of progress, Franklin Clergy the of more or one lights to illuminate the our understandings” and moved that “henceforth prayers imploring that and business, to our deliberations, be held in this Assembly every assistance of Heaven, and its blessings on proceed we before morning requested to officiate in that service.” vania ordain and establish this Constitution for its government.”). sider referring to God in the preamble. be briefly to [] declare, that the present foederal that the “object of our preamble ought to that the conviction of this fact gave happiness, [sic] government is insufficient to the general effectual birth to this convention; and that the only (means) (mode) which they (could) (can) establishment of a supreme legislative executive devise, for curing this insufficiency, is the and judiciary”); tion governed by the Constitution and whether to list the states individually in the pream- to list the states tion governed by the Constitution and whether ble). 2017] amble to God—and not refer that does suggestion of any lack even the to refer God—isthat it ought with consistent rejection, two their sound months of Benjamin motion Franklin’s began, after the Convention to session withbegin each a member prayer led by of the clergy. 2S words, of thirteen origin only three preamble. era that invoked God in the in the revolutionary Even that numberof the three of the practice, as one overstates the frequency merely quoted from the Declaration and another of Independence, would the reference only a few abandon years later. The dominant wasapproach, instead, to eschew reference to God in the people’s dec- of state government.laration of the ends Massachusetts’s and explicit direct treatment of religion and religio quickly became anomalous among as the other state constitutions, barred state estab- adopt constitutions that expressly states began to lishments of religion—and that declined to refer to God in the preamble. objected (because of financial limitations or the message that such a measure might convey objected (because of financial limitations or the message that such a measure might motion. about their prospect for success), the Convention adjourned without a vote on the James Madison’s notes state that “[t]he Convention, except three or four persons, thought Prayers unnecessary.” 39285-mqt_100-3 Sheet No. 60 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 60 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 60 Side B 06/19/2017 09:53:44 . A M K C Y RESENT P ONVENTIONS C The records 101 102 ORMED THE F ALLING THE C HAT [100:757 [100:757 T God, makingGod, it the only of the federal Constitution, The majority,however, in- ELATIVE TO 100 R establish this constitution for its establish this constitution for its ONVENTION C show no controversy over the change show no controversy ) 6/12/17) 1:49 PM ROCEEDINGS P ELETE HE nstitution for its government.” D T . of 1832. OT OT INUTES OF THE N MARQUETTE LAW REVIEW MARQUETTE see M O ONST (D . of 1790, pmbl. In contrast, there was considerable controversy HE .C . of 1792, pmbl. Some former territories also used the preamble to state ISS DOCX . ONST notes 290–312 and accompanying text. The omission, however, was not notes 290–312 and accompanying text. The 103 , M .C INAL 1790: T ONST A -F P . C . of 1803, pmbl. Y UTTLE We, of the eastern division of the territory of the United the people consistent with the Constitution of . . . States northwest of the river Ohio law of Congress and the the United States, the [Northwest Ordinance], eastern division of the terri- entitled “An act to enable the people of the river Ohio to form a constitu- tory of the United States northwest of the of such State into the tion and State government, and for the admission States, and for other pur- Union on an equal footing with the original poses,” . . . do ordain and establish the following constitution . . . and do ourselves into a free and inde- mutually agree with each other to form Ohio. pendent State by the name of the State of AND .See . See infra . See, e.g. ONST . of 1790, art. IX, § 4; &T C 103 101. K 100 102 In the first decade after the ratification In the first decade 1776 MITH MITH HIO ONST permanent. Pennsylvania added a reference to God in the preamble to its 1874 constitution. God in the preamble to its 1874 constitution. to permanent. Pennsylvania added a reference did not have a preamble (and thus did In addition, although Virginia’s original constitution and 1902 constitutions began with preambles that not refer to God in a preamble), its 1870 referred to God. But the state omitted the preamble (and the reference to God) in its 1971 constitution. cluded a preamblecluded a withstatement a no reference to of purposes but God. Atypical preamble from adopt- the one that Kentucky this era is admissioned in 1792, upon to the union: “We, of the representatives assembled, State of Kentucky, in convention the people of the do or- this co dain and establish the transition from territory to state, often by identifying the state’s boundaries or the con- the transition from territory to state, often gressional legislation approving admission. The norm in such cases was not to refer to God. For example: O OF C 782 that a constitution those adopted one of only and the union, joined mentioned the preamble. God in Some simply of the states did not in- preambleclude a to their constitutions. 2S of Pennsylvania’s convention of Pennsylvania’s from the detailed 1776 preamble that mentioneda brief and God to utilitarian preamble stating simply, “We, of the Common- the people wealth and of Pennsylvania ordain government.” over a provision in the enumeration of rights that prohibited disqualification from public office “on account of [] religious sentiments,” but only for potential office holders who P “acknowledge[] the being of a God, and a future state of rewards and punishments.” state to have included a reference to Godstate to have included constitution in its original and then omitted a subsequent state constitution. it in Pennsylvania dropped its prior reference to Pennsylvania dropped 39285-mqt_100-3 Sheet No. 60 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 60 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 61 Side A 06/19/2017 09:53:44 HE ,T ENN P ONVENTIONS C ILLIAM W The adoption of . of 1790, art. VIII (1790). . of 1790, art. VIII (1790). 106 783 783 ne involvement in hu- ONST HARTER TO s preamble’s to reference .C C A ROCEEDINGS OF THE P opted constitutions with pre- people to adopt a newpeople to adopt constitu- ITH THE have, by nature,” as a wayhave, by of de- nineteenth century, as well. After W e ratification of the federal Constitu- IEW OF THE y, identifies “divine goodness” as the “divine goodness” y, identifies 195–96, 217–19, 376–77 (1825). The 1790 Pennsylva- AV , ) 6/12/17) 1:49 PM OGETHER th its entirely secular preamble, presumably ,T AND ELETE D ENSORS C OT OT 1790, N O GOD AND STATE PREAMBLES AND STATE GOD (D AND . of 1792, pmbl. DOCX ENNSYLVANIA . OUNCIL OF P note 66 and accompanying text. 1776 the preamble version, like New is an early 1777 York’s C ONST INAL 105 -F .C EL UTTLE Asessentially Deist such, the clause reflects an understanding AND THE .Id. .Id. . See supra &T 104 105 106 104. D Constitutions with preambles referring to God remained the excep- Delaware was new the only one of the seven states that adopted Two years after Pennsylvania dropped it dropped Pennsylvania years after Two M K 1776, MITH MITH ONSTITUTION OF ONSTITUTION OF C Y the federal constitution, wi influenced the drafting of preambles in this era. the tion for the first four decades of Delaware’s it was 1792 constitution, twenty-six years before another state constitution mentioned God preamble. in the During those two preamble, 1 preamble. of a Type th constitutions in the decade after ambles that did not mention is particularly notable that Ver- God. It mont’s not mention constitution did God, because both of its earlier charters, adopted when an independent re- the state considered itself public and before its admission to the union, did. tion to include a reference to God in its preamble.tion to include a reference to God Georgia and South Carolina, whichnot include references to God in the preambles did of to omittheir original constitutions, continued their any reference in new The three new constitutions. admissions to the union— Ken- tucky, Vermont, and Tennessee—also ad OF nia constitution also eliminated the previous constitution’sreligious test for public office, instead requiring only a secular oath for office holders. P God, Delaware added one in its new added one God, Delaware the refer- although constitution, The preambleence is oblique. to Delaware’s which 1792 constitution, remains the state’s preamble toda scribing the ultimate authority of the source of the rights that “all [people] the rights that source of tion. of the divine and the relationship between the divine and humanity. the relationship betweenof the divine and and humanity. the divine On this view, the primary work divine was of the itself, the creation of humanincluding the creation nature, with ca- its rights and rational of God in the 1792 the only reference to the attributes pacity. Because Delaware preamble wasrights, as creator and the source of to God contemplationwith no express of ongoing divi man affairs, C C 2017] 2S 39285-mqt_100-3 Sheet No. 61 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 61 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 61 Side B 06/19/2017 09:53:44 M K C Y seven of seven 107 and thus is an 110 [100:757 [100:757 112 when it split off from the 109 us to make choice of our formus to make choice of they have derived from 111 constitutions with preambles refer- Congress was not diminished by the Congress was not his aid and direction,” ) 6/12/17) 1:49 PM ELETE D OT OT N MARQUETTE LAW REVIEW MARQUETTE O (D . of 1818, pmbl. . of 1821, pmbl. . of 1820, pmbl. (“We the people of Maine . . . acknowledging with acknowledging . . .. (“We of 1820, pmbl. the people of Maine . of 1820, pmbl. DOCX . ONST ONST ONST .C INAL ONST C -F .C .C E E ONN and only three of them and only pre- to God in the included references UTTLE The people of Connecticut acknowledging with grati- in having permittedtude, the good providence of God, them to enjoy a free government,order more do, in ef- fectually to define, secure, the liberties, and perpetuate rights, and privileges which their ancestors, hereby, after a careful consideration and following constitution revision, ordain and establish the and form civil government. of 108 &T 111. C 107. Kentucky to the adopted two constitutions during this era: one (upon admission 108. Mississippi and one in adopted two constitutions during this era: one in 1817, 109. M 112. N.Y. 110. M Indeed, betweenIndeed, ten new states, including and 1840, sixteen 1800 New constitution used very similar York’s 1821 language in its The other two states to adopt MITH MITH the eight states werethe eight new admissions to the union. admissions new constitu- adopted seventeen union, collectively to the tions, preamble: “We, the people . . . acknowledging with gratitude the grace permitting in God, of and beneficence government, do establish this constitution.” 784 constitutions; nine adopted eight states a half decades, and 2S grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an op- grateful hearts the goodness of the Sovereign Ruler of the Universe in affording accom- portunity, so favorable to the design; and, imploring his aid and direction in its plishment . . . do ordain and establish the following Constitution . . . .”). ring to God between 1800 and 1840 were New Connecticut and York. The preamble of the 1818 Connecticut constitution provides, early version of a Type 2 preamble. amble. One of those—Maine’s, in 1820—essentially borrowed the language of Massachusetts’s constitution union) in 1792, and another in 1799. union) in 1792, and another in 1799. 1832. latter to form state. The land that became a separate state of Maine the been a part of Massachusetts,had previously but Maine obtained sep- as part of the Missouriarate statehood Compromise of 1820, to ensure in that northern representation admission Missouri of that It thus is not surprising as a slave state. Maine’s constitution borrowed from substantially Massachusetts’s. Maine’s preamble, like Massachusetts’s, “acknowledg[es]”the good- “implor[es]ness of God and 39285-mqt_100-3 Sheet No. 61 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 61 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 62 Side A 06/19/2017 09:53:44 , 65 ELD AT ,H ONNECTICUT C 785 785 note 38, at 519–37. Contemporaneous ac- 114 supra , re than a half-century later, later, re than a half-century rived from God. two But the ONVENTION OF to adopt a constitution expressly to adopt a constitution expressly C ONSTITUTIONS C ) 6/12/17) 1:49 PM 1818, at 17 (1873), TATE Annotated Debates of the 1818 Constitutional Convention S ELETE D ONSTITUTIONAL OT OT C N O GOD AND STATE PREAMBLES AND STATE GOD (D 115 EDERAL AND DOCX . F HE INAL -F Wesley W. Horton, Horton, W. Wesley 1 T In addition to the desire OURNAL OF THE UTTLE 113 .See .See &T . B.J. SI-3, SI-24 (1991). 115 113 114. J New convention in 1821 in part be- York convened a constitutional The Connecticut and New York preambles New York and Connecticut The God had that asserted wasConnecticut’s 1818 constitution state’s first post- the M K MITH MITH ARTFORD IN ONN C Y journal of the convention, published mo of the convention, journal provides only brief minutes and voting records and states simply that the preamble “was and approved.” [] read approved by the people, Connecticut adopted the 1818 constitution in approved by the people, Connecticut (Connecticut, like Massachusetts,large part to disestablish the church. of religion.) Records of the had a long tradition of state sponsorship convention are sparse; it was not open official to the public, and the endowed with the people free governments, right to create the just as Type 1 preamblesthe earlier a gov- right to constitute asserted that the ernment, rights, de all other natural like preambles differed from those earlier preambles in two important ways. to God an explicit expression of gratitude First, they contained for permitting to create free governments. the people they re- Second, ferred to God’s and beneficence in allowing grace, providence, the to create free governments.people the opportunity the ref- sure, To be appear to contemplate providence, and beneficence erences to grace, divine involvement the mere beyond act of creation—aclaim made largely in Calvinist language—but suggest a certain dis- nonetheless tance between God and human action. On man, God creates this view, for humanand God’s plan history permits creation of free gov- the ernment. Because the preambles any further role for God do not assert in the development of human history, we treat them as the second phase in the development of Type 1 preambles. several decades after independence, independence charter; for the first Charter, whichthe state had relied on its 1662 Royal retained many el- ementsthe Fundamental of Orders of 1639, which the local government had adopted to identify the scope of its authority and responsi- bilities. H 2017] 2S http://babel.hathitrust.org/cgi/pt?id=hvd.hxt8rz;view=1up;seq=1 [https://perma.cc/JCG4-QHBN]. C counts in newspapers controversy over the wording do not reveal any of the preamble. cause of a power struggle between the Governor and the legislature. cause of a power struggle between theand the legislature. Governor 39285-mqt_100-3 Sheet No. 62 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 62 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 62 Side B 06/19/2017 09:53:44 N M K HE C Y :A the ,T (1993) CHISMS 117 S ATCH EFORM see generally Like the R EBATES OF THE and about and about MERICA 120 D O. H A ONSTITUTION OF 116 C AND , at 606. The records do ATHAN ENOMINATIONAL NTEBELLUM See id. [100:757 [100:757 :D A WAKENINGS MENDING THE ROCEEDINGS AND A ,A P ATION N , 1607–1977, 134–35 (1978). The Second 23–33 (1985); N 62–64, 71–73, 206–09 (1989); OLITICS IN EVIVALS P AR ROKEN ,R MERICA URPOSE OF W P evangelical revival is traditionally evangelical revival is traditionally A ,B EPORTS OF THE IVIL The lack of controversy is not surpris- The lack of controversy C ., R ) 6/12/17) 1:49 PM 118 HRISTIANITY OUGHLIN L C HURCHES C 119 HANGE IN ELETE C C 121 D OT OT MERICAN G. M VANGELICALS AND N MARQUETTE LAW REVIEW MARQUETTE note 51, at 65–66. A O ARTER ET AL OCIAL ,E MERICAN SSEMBLED FOR THE ROKEN S (D 465–66 (1821). A supra H. C ,B , ILLIAM ORK DOCX . Y OEN , W 1821, A INAL at 574–76. EW UTSON -F ARWARDINE N C. G H ATHANIEL OMING OF THE ELIGION AND C J. C R UTTLE . See, e.g. . See id. .See &T TATE OF 121. C. 120 117 116. N 119 118. Peter H. Wendover, of the United States Con- a Democratic-Republican member Although records of New the York and Connecticut’s conventions This movement of national S MITH MITH EMOCRATIZATION OF ONVENTION OF ICHARD SSAY ON Great Awakening, which was perhaps the most powerful religious movement in U.S. histo- focused ry, has received little attention in the legal academy, and certainly far less than that on religion in the founding era. are sparse, their adoption of language referring to God adoption of language referring are sparse, their is not surprising when viewed dominant in light of an eventually religious movement that emerged during this era. By mid-century, Great the Second Awakening would every aspect of American reach into virtually life, of constitution-making.including politics and the process ing: it appears that the convention simply borrowed the convention ing: it appears that the language from preamble;Connecticut’s 1818 New had York’s previous constitution in the preamble;referred to God some and the state had at least history with established churches. notes from the lan- controversy over do not reveal any the convention preamble.guage used in the (exploring evangelical involvement in each election cycle between 1840 and 1860). E D C 786 Although was there meaningful wit- to shield a proposal about debate court fromnesses in faith about their religious questions 2S the clause that wouldthe clause (and in exercise of religion the free guarantee whatparticular status of Christianity), about the legal it reflected AND THE THE traced to an 1801 camp meeting includ- in Cane Ridge, Kentucky, that ministersed a diverse array of Protestant and attracted between 10,000 First Great Awakening, this movement personal salvation focused on and moral growth, but it went beyond the prior movement by insisting that the whole community, rather than just the individual, is the object of divine transformation. not reveal any debate or controversy over the language. the language. not reveal any debate or controversy over gress and a delegate at the 1821 convention, proposed the language of the preamble.gress and a delegate at the 1821 convention, It was referred to a committee as proposed. and eventually adopted R 39285-mqt_100-3 Sheet No. 62 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 62 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 63 Side A 06/19/2017 09:53:44 , SSAY E OLFFE N W :A OHN HALMERS AND ,C EFORM R Over the next RANSFORMATION OF T ORE 122 note 122, at 59–62. HE ,M AND , :T 787 787 supra , On the Puritan view, the OLFFE ROUGHT 125 revival of those themesrevival of those sev- ILBERFORCE inkers of the Second Great note 52, at 131. WAKENINGS W W ,A OD supra , G all deeply influenced by the Puri- , 1607–1977, at 134–35 (1978); J GE OF A ATH EVIVALS ENNA H K HE ,R MERICA C A ) 6/12/17) 1:49 PM ;T HAT In the North, however, the new evangeli- ELETE ,W note 122, at 131–38; W 124 D OUGHLIN note 52, 88–100. OT OT L In some places—principally the South—the in OWE supra C N HANGE IN , H 123 O GOD AND STATE PREAMBLES AND STATE GOD C supra (D , G. M VANGELICALISM Rather than emphasizing the boundaries of the To leading religious th E ALKER DOCX OCIAL . 127 S ENNA 126 OUGHLIN W L K INAL ILLIAM at 37. at 88–100, 126–27 C C -F M M W ANIEL 1815–1848, at 187–88 (2007); M UTTLE . See . See .See . See id. . See id. 58–59 (2007). &T XPANSION OF ELIGION AND E 124. D 125 123 122 126 127 Althoughreligious figures—including these Henry and Lyman R M K MITH MITH MERICA HE INNEY C Y new world create a holy community, represented an opportunity to composed of confirmedthemselves believers free to govern according to God’s law. church as those who the Se- have already been saved, the leaders of cond Great Awakening emphasizedpotential for redemption the of the entire political community. Indeed, the movement’s enthusiastic eral decades later, and had as its basic objective to bring back to church and had as its basic objective eral decades later, people who from towards the pulpits been largely absent had the end century. of the eighteenth movementof the hallmarks virtually all retained Great of the First Awakening, with experience of re- its focus on an authentic individual it represented merelybirth in the Spirit; a F A T 2017] 20,000 worshippersand week-longduring the event. 2S cal revival attracted the attention of religious leaders who the attention of religious leaders cal revival attracted envisioned something more than simply individu- the prior century’s focus on the al’s moral and spiritual life. and many Grandison Finney, Beecher, Charles others—frequently differed on doctrinal points, they were tan ideas of a holy land and a holy people. tan ideas of a holy land and a holy two meeting the Cane Ridge decades, inspired similar camp meetings frontier, as wellacross the of revival meetings as the renewal in settled the country. areas of ON Awakening, in contrast, the American people as a whole—rather than those who had already conformedbeliefs and actions to the de- their mands of the church—have the divine plan. On in a special place this view, America was God’s project; the American continent was God’s of authentic Christianity, freed fromchosen place for the restoration churches and RomanEurope’s burden of established Catholicism, and the American people were present or potential congregants in the God’s church. 39285-mqt_100-3 Sheet No. 63 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 63 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 63 Side B 06/19/2017 09:53:44 M K 128 C Y They They 133 OLYGAMY AND :P UESTION 19–20 (2002). Q [100:757 [100:757 note 68, at 265. inspired by the Second inspired by the MERICA One manifestationthis of supra A ORMON , 135 M 134 religious and political domina- faith and government, however, faith and government, however, ncerns included public education, ncerns included HE of the movement’s contention that ENTURY ,T generally meant Protestant values— ecially if that religious hierarchy wasecially if that religious hierarchy -C both domains. Because they believed ) 6/12/17) 1:49 PM note 86, at 1395–96. ORDON 132 ISESTABLISHMENT G D ELETE INETEENTH D supra Thus, the Second Great Awakening Thus, the Second was N note 122, at 101–06. OT OT note 132, at 70–73. N MARQUETTE LAW REVIEW MARQUETTE 129 ECOND O S supra (D note 122, at 58. ARRINGER , Esbeck, supra and their growth in faith. Instead, the leaders em- Instead, the growth in faith. and their B HE , Accordingly, organizations ,T DOCX . ONFLICT IN 130 supra , C see also INAL at 55–83. ; ARAH REEN ORDON OUGHLIN -F L S G G at 136–37. OLFFE C UTTLE In the 1830s, this movement In the 1830s, this to have a dramatic began effect not .See . See id. . See id. .Id. .See .See &T 131 129. M 128. W 132 133 134 130 131 135 This close relationship between This close relationship between Nonetheless, of their efforts are still rightly called the the fruits For the movement’s leaders, the impactGod’s of did not stop grace MITH MITH ONSTITUTIONAL alcohol abuse, and (for those on the morealcohol abuse, and of the move- radical side ment) slavery. marked number by huge growth in the devoted to of organizations moral improvement. moral These co did not trigger concerns among followers of the movement about the- by the Second Greatocracy. Indeed, those influenced Awakening as evidenced by evangelical strongly opposed any hint of theocracy, Protestants’ attacks on Roman Catholics and, later, Mormons. viewed traditions, unlike the Protestantism these religious that they preached, as impermissibly blending Great Awakening creation of common urged the (typically schools with character); temperance a distinctively Protestant (enforced and abolition- and, less successfully, legislation); through pledges ism. tion over individual freedom in is authentic only if the product of vol- that the experience of salvation rejecteduntary choice, these evangelicals any idea of a hierarchically enforced religious orthodoxy, esp intertwined with the power of the state. C 788 missionary acknowledgment an reflected efforts all were not that yet be reached that all could saved, but and transformedGod’s grace. by 2S only on personal religious practices, but also on ideas about the proper religious practices, but also on only on personal domaincivil government. of with individuals with individuals the importancephasized transforming of moral the the whole life of political community. should permeate all dimensions of life. “Protestant Establishment” because religious values—by which they 39285-mqt_100-3 Sheet No. 63 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 63 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 64 Side A 06/19/2017 09:53:44 HE T ND A 137 WAKENING A 789 789 This is notwithstand- dropped its earlier ref- note 68, at 265. 140 Importantly,the propo- REAT G 136 supra is not surprising, however, is not surprising, , lications of the movement first practice of public recognition of recognition of public practice opted constitutions with pream- ECOND r prominent manifestation of this S ry after the ratification of the Constitu- HE ) 6/12/17) 1:49 PM The movement was most in influential ISESTABLISHMENT 138 ,T D ELETE note 122, at 137, 114–15. D OT OT supra N ing Pennsylvania, which ing Pennsylvania, , ECOND ANKINS O GOD AND STATE PREAMBLES AND STATE GOD S H (D HE 15–19 (2004). ,T DOCX . OUGHLIN ARRY L INAL at 255–56. C REEN -F G B M UTTLE Indeed, of the seven states in this region, the only three to ap- Indeed, of the seven states in this .See . See id. .See .See &T 139 140. As two different constitutions with different ref- noted above, New York adopted 136 137 139 138 Acknowledgment preambles of God in the state constitutions to Those three states, however, were the exception to the rule, rather M K MITH MITH RANSCENDENTALISTS C Y when the gradual geographical one considers spread of the Second Great Awakening. Although the Cane Ridge revival in Appalachia marked imp its beginning, the political emerged in the Northeast, where Puritanism’s religious leaders fused emphasis the holy community on with the First Great Awakening’s focus on personal salvation. would eventually become anothe practice. Although the Second Great Awakening would have a significant impact state constitution-making on after 1840, however, its influ- appears to have been limitedence before 1840 and to Connecticut’s New York’s constitutions. This pattern New England and New York, part of whichNew England and New York, came to be known as the “Burned-Over District” of the religious fervor of its inhabit- because ants. ing the fact that during this era the twenty-sixing the fact that during this states collectively nents of this practice understood it to be compatible it to be this practice understood nents of with religious lib- believed that this formerty because they and prayer of bible reading nor required of all faiths and neither advanced was open to persons the doctrines the acceptance of denomination.of any specific erences to God during this period. Accordingly, the states collectively adopted seven con- erences to God during this period. Accordingly, the states collectively adopted seven stitutions with such references in this era. T God. For example,God. For the movement non- bible reading and encouraged prayer in commonsectarian to promote schools, both morality and to students to acknowledgeencourage God. 2017] wasproject common increasingly the 2S erence to God during this period) ad tion, most state preambles did not refer to God. Indeed, of the twenty- six states that formed or joined the union before union the original only six (includ 1840, bles referring to God between and 1840. 1776 prove new constitutions between adopted preambles 1800 and 1840 acknowledging God. than the norm. For a half-centu 39285-mqt_100-3 Sheet No. 64 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 64 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 64 Side B 06/19/2017 09:53:44 M K C Y [100:757 [100:757 is era and constitutions in is era and constitutions opted constitutions that did not opted constitutions ring this era.) Of those twenty, 141 ns with Type 2 preambles—that constitutions. (Louisiana and Io- (Louisiana constitutions. irds of the states that adopted con- irds of the states this era, Rhode Island, New Jersey, this era, Rhode Island, New Jersey, the original constitutions of five of the original constitutions ) 6/12/17) 1:49 PM C. 1840–1860 C. 1840–1860 g this era used Type 1, rather than Type 2, used Type 1, rather g this era blessing for future endeavors. To be sure, blessing for future endeavors. ELETE D OT OT N MARQUETTE LAW REVIEW MARQUETTE O (D DOCX In this era, in other words, In this era, in almost two-thirds of the . 142 INAL -F UTTLE &T 141. Rhode any constitutions during this era; it relied on its colo- Island did not adopt 142. adopted two constitutions during this era, both of which referred to God; Iowa This began to change in the 1840s. Between to change in This began 1840 and 1860, eight- Because the conventional approach in preamblesBecause the conventional approach changed substan- The language used in someThe language used also changed in sub- of those references MITH MITH the six states that joined the union during th the six states that een states adopted a total of twenty adopted a total een states wa adopted two each constitutions du to God,thirteen referred including that previously had ad four other states refer to God. is, preambles that not only expressed but gratitude to God for liberty, also actively sought God’s Iowa, adopted constitutio and Illinois Type 2 preambles did not become the norm; during this era, Texas, New Wisconsin, York, California, Maryland, and Min- Ohio, Indiana, nesota adopted Type 1 preambles—that is, preambles that only ex- thereby avoiding, at least express- pressed gratitude to God for liberty, ly, the more claim robust theological that God has the power to direct the course of human affairs. But the trend unmistakably was toward the invocation of God in preambles. Indeed, although a majority of the constitutions adopted durin adopted Type 1 preambleslanguage, three of the states that did so while replacing constitutions whose preambles had not referred to God at all. tially in this era, we give even closer consideration to the circumstanc- and to the debates—wherees that produced those changes, available— thatin the constitutional conventions of new led to the adoption constitutions. constitutions (and moreconstitutions (and than two-th languagestitutions) incorporated referring to God. tle but important ways, incorporating that makes language more ro- claimsbust theological about God’s and the devel- role in public life opment of human history. During 790 new thirty-nine adopted constitutions. 2S nial charter until 1843, when it adopted its first state constitution. Virginia, and Kentucky adopted constitutions Louisiana (twice), Florida, Michigan, Indiana, that did not refer to God. 39285-mqt_100-3 Sheet No. 64 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 64 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 65 Side A 06/19/2017 09:53:44 in 144 , Members of the 145 791 791 This is not to suggest 146 to incorporate religious lan- th the Whigs (and the Second Thomas Wilson Dorr challenged is era is by considering the political is era is by considering to create a new, more democratic e adoption of the Rhode Island consti- ) 6/12/17) 1:49 PM The Political Culture of Antebellum Iowa: An Overview More important for our purposes, the ELETE 143 D OT OT N note 52, at 105. O GOD AND STATE PREAMBLES AND STATE GOD (D 96 (Marvin Bergman ed., 2008) (noting that the “Whigs advocated supra , DOCX . EADER INAL at 80; Robert Cook, at 149. R ENNA -F K at 107–08. C UTTLE ISTORY .Id. . See id. . See id. &T H 144 145 143. M 146 The four states that adopted Type 2 preambles Type adopted that four states The 1840s the during One way measuring of the impact of the Second Great Awakening Not surprisingly, Whig central roles in the craft- delegates played M K MITH MITH C Y OWA Whigs were predominantly and many Protestant, were evangelical. Whig Party, as a consequence, often supported temperance laws, common schools, and laws against gambling. the use of government to create a truly Protestant republic—bythe use of government to create a truly Protestant preventing liquor sales, for example”). Many Whigs Indian-removal also criticized President Jackson’s policies on moral and religious grounds. perfectly fit the pattern of the Second Great Awakening’s migration. Great Awakening’s of the Second fit the pattern perfectly migration. The movement from spread Northeast the to the Ohio and the Valley upper Midwest. adopted moreThe states that theological robustly in their preambleslanguage era were in this the Northeast either in New(Rhode Island and or in the Ohio Jersey) Midwest Valley and (Iowa and Illinois). on state constitution-making in th influence of the Whiginfluence of the Party. The Whigs supported moderni- generally system the banking zation, banks), and (and thus fewer constraints on economic protectionism. Although not every memberthe Whig of all of the theo- Party shared of the Second Greatlogical presuppositions Awakening, they certainly for both transformation, moral on emphasis movement’s the shared community.the individual and the broader political 2017] 2S tution in 1843, the state’s first post-independence constitution. The tution in 1843, the state’s first after state adopted the constitution a formallythe authority of the state by leading unsanctioned constitutional convention that purported guage in preambles, as they apparently did not view it as a matter of great importance. ing of the preamble language in the states whose constitutions referred to God. The trend began with th that members Democratic of the rival era were Party in this hostile to religion; instead, they parted ways wi Great Awakening) of government over the appropriate role in moral transformation (and, of course, over the issue of slavery). Democrats rarely aggressively opposed Whig efforts I 39285-mqt_100-3 Sheet No. 65 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 65 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 65 Side B 06/19/2017 09:53:44 ] S ’ M K 150 149 C Y SLAND I OURNAL J and served ERSEY J HODE 151 EW :R ONSTITUTION FOR THE But Jonathan J. C ONSTITUTION FOR THE 153 C ECLINE [100:757 [100:757 D RAME A F in human Most history. of ORM A F 12, 1842, at 40–41 (1859). The journal of the 1842 convention The journal of the 81–82 (1844) [hereinafter N SSEMBLED TO EMOCRACY IN 148 A EPTEMBER , D sition in this era to the Democrats. ) 6/12/17) 1:49 PM ERSEY ,S J ROCEEDINGS TO The preamble The constitu- 1843 the state’s of P ELETE EW 1776–1841, at 309 (1977) (describing the so-called “People’s 1776–1841, at 309 (1977) (describing the so-called 147 ONLEY D N OT OT EWPORT ONVENTION N MARQUETTE LAW REVIEW MARQUETTE N note 147, at 351 (“Senator James Fowler Simmons and the Whig note 147, at 351 (“Senator James Fowler Simmons C O T. C (D TATE OF The records of the convention do not reveal any de- The records of the convention supra S , . (“We, of 1844, pmbl. the people of the to State of New Jersey, grateful . of 1843, pmbl. DOCX 152 . EVELOPMENT D SLAND AT I ATRICK at 298 (“The election of 1840 brought complete victory to Rhode Island’s at 298 (“The election of 1840 brought complete INAL ONST OURNAL OF THE ONST ONLEY J -F C C P C HODE OURNAL OF THE UTTLE R .See . See id. .See .See &T 152. N.J. 153 148. R.I. 151 147 149. J 150 The composition of the convention, however, helps to explain the helps to explain the The composition however, of the convention, In Newthe convention called to adopt a new Jersey one year later, MITH MITH OVERNMENT OF THE ONSTITUTIONAL TATE OF Whigs.”). Whigs.”). (noting that Mr. Spencer reported the draft preamble,the form that ultimately which was in Almighty God for the civil and religious liberty which He hath so long permitted us to en- Almighty God for the civil and religious liberty the same joy, and looking to Him for a blessing upon our endeavors to secure and transmit unimpaired to succeeding generations, do ordain and establish this constitution.”). tion provides: “We,tion provides: and Provi- of Rhode Island of the State the people to Almighty grateful dence Plantations, God religious for the civil and liberty which He permitted hath so long to and looking us to enjoy, Him and to transmit to secure upon our endeavors for a blessing the same unimpaired and establish succeeding generations, do ordain to of government.”this constitution mentions the preamble only once—in that it was noting proposed and adopted—andlanguage. any controversy over the does not reveal Convention”). faction that he directed loomed large in the deliberations which produced a basic law mod- faction that he directed loomed large in the eled on the Landholders’ Constitution.”). G C S Instead, most re- the convention was on the property of the focus at quirements immigrants. and suffrage for blacks and for voting preamble,language of the and in particular its more robust theological claim involvement about God’s continuing pre-existing governmentwhich had controlled the state’s 792 state. for the constitution the Dorrites were Democrats (or former Democrats), and although many Democrats did not agree with Dorr’s efforts, his movement was popular enough that it sapped Democratic strength at the convention. newAs a consequence, the 1842 convention that produced the state’s constitution was dominated by delegates from the Whig Party, 2S bate over the preamble and its reference to God. as the principal political oppo constitution approved a preamble with to language virtually identical Rhode Island’s. 39285-mqt_100-3 Sheet No. 65 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 65 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 66 Side A 06/19/2017 09:53:44 , , , The ERSEY J ENTER C There LECTIONS EW E 157 OLITICS AND ,N P EBATES OF THE OR D , ILLER ERSEY J , M EW 793 793 See Richard S. Field: Attorney ,N RACTITIONER P . of 1844, pmbl.; Louis Pelzer, RAGMENTS OF THE ALMORE RESIDENTIAL F ONST OUNTRY C See C A. S Whignominated party Theodore But the samethat New year Jer- HE See 1844 Presidential General Election Results 47 (1879–1881). To be sure, Whigs To be not domi- did 1846, at 234, 247–55 (Benjamin F. Shambaugh OWA T 156 I 154 134 (3d ed. 2013). See TEPHEN AND GE RACTICE ) 6/12/17) 1:49 PM 158 A &S P See also , http://nj.gov/oag/oag/ag_1838-1841_field_bio.htm 1844 U.S. P ELETE note 153, at 18–19. Field eventually was appointed by a note 153, at 18–19. Field eventually was D AFETY OME OF OT OT ALMORE C N supra URGICAL .S S , O GOD AND STATE PREAMBLES AND STATE GOD EBATES OF UB (D G. S D UBURBS DOCX . S OURNAL J L. & P HE (“Delegates to the 1844 constitutional convention . . . divided almost exact- . . (“Delegates to the 1844 constitutional convention INAL ARBARA EDICAL AND -F :T T The preamble provided in relevant part, “We, The preamble the People of provided in relevant ’ B M and Whigs and Democrats numbershad roughly equal of ERSEY EP J 159 See id. UTTLE 155 . See and Elections James K. Polk: Campaigns .See ONSTITUTIONAL , D EW &T C 154. Spencer had been a Whig as a and, a year after serving candidate for Congress 159. The language in the preamble was originally drafted and adopted in a convention 156. 157 158. another likely Whig Indeed, S. Field, began the convention by delegate, Richard 155 Two in 1846, Iowa years later, upon admis- adopted a constitution M K MITH MITH TLAS OF OVERNMENT C Y OWA OURNAL OF supporters in New Jersey in 1844. Republican Governor to serve out the term of an open Senate seat, and President Lincoln Republican Governor to serve out the term district court judge. later appointed him to serve as a federal I G would be adopted). was nominated as the Whigdelegate at the constitutional convention, candidate for Gover- nor, though he declined the nomination. J 2017] who a physician Spencer, the committeechaired lan- the drafted that whoguage and was to the convention, proposed the language a prominent member of the Whig Party. 2S ed., 1900) [hereinafter Shambaugh]. [https://perma.cc/XL9K-P5JC] (last visited Apr. 24, 2017). The Whig Party had dissolved by 1862, but most of its members had become Republicans. dispute a in 1844, as part of a constitution that the voters twice narrowly rejected because of with Congress over the boundaries of the state. ly between Whigs and Democrats . . . .”). Henry the Whig Clay, candidate for President, . . . ly between Whigs and Democrats vote; Clay won 50.46% of in a very close election carried New Jersey in the 1844 presidential the popular vote to James K. Polk’s 49.39%. thus is reason to believe that Newthus is reason to Jersey Whigs at the time shared the more by the Second Great Awaken- general evangelical fervor inspired ing held by Whigs elsewhere. sion to the union withsion to the union preamble a similar Rhode Island’s and New to Jersey’s. Frelinghuysen of NewFrelinghuysen of active evangelical Christian known Jersey, an as the “Christian statesman,” President. as its candidate for Vice sey adopted its newsey adopted its constitution, the http://uselectionatlas.org/RESULTS/national.php?year=1844 [https://perma.cc/TB42- http://uselectionatlas.org/RESULTS/national.php?year=1844 5RRD] (last visited Apr. 24, 2017). https://millercenter.org/president/polk/campaigns-and-elections [https://perma.cc/2WAJ-XK9P] (last visited Apr. 24, 2017). our dependence upon God, and invoke successfully moving a resolution to “acknowledge “every morning [of the convention] with pray- his blessing upon our labours,” and to open er.” N nate the convention in New convention in nate the way Jersey the in Rhode they had Island, General A 39285-mqt_100-3 Sheet No. 66 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 66 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 66 Side B 06/19/2017 09:53:44 M K C Y ISTORY AND note 146, at H supra at app. B at 415. Unlike par- the See id. 160 OURNAL OF in particular in its in particular in As a consequence, As a consequence, J 162 161 [100:757 [100:757 OWA 5 I ral Constitution and identi- in , note 146, at 97. note 159, at 414. Because the 1844 con- (“Much (though by no means all) of the supra and its refusal to extend voting and its refusal supra 163 . of 1846, art. 9, § 1. . of 1846, art. 9, § note 159, at 193–212. ONST see also id. ) 6/12/17) 1:49 PM C supra ELETE But the Iowa Whigs, who like Whigs else- Shambaugh, OWA D I 164 See OT OT note 159, at app. A at 410 (stating that there were fifty-one note 159, at app. A at 410 (stating that See N MARQUETTE LAW REVIEW MARQUETTE O . of 1846, art. 3, § 1. In contrast, Iowa’s Whigs, similar to Whigs (D supra . of 1846, pmbl. note 146, at 95; note 146, at 94. ONST DOCX C . ONST supra supra INAL C OWA -F I OWA UTTLE 77–85 (Benjamin F. Shambaugh ed., does not ap- 1907) [hereinafter Pelzer]. There .See appear to have exerted their influence in the drafting and adop- exerted their influence in the drafting appear to have &T 165 160. I 164 161. Shambaugh, 165. Cook, 162. Cook, 163. The the creation of any bank that would issue notes that constitution prohibited The Committee of on State Boundaries drafted the initial version MITH MITH OLITICS vention drafted the preamble, we consider in our discussion above. that convention tisan demographics and New the Rhode Island of Jersey conventions, more than two-thirdselected to the convention were of the delegates Democrats, were and less than one-third Whigs. pear to have been any debate at the 1846 convention about the portion of the preamble re- pear to have been any debate at the 1846 1844 constitution. The 1846 constitutional con- ferring to God that had been adopted at the vention met fifteen days and used as for only its template the constitution adopted in the convention two years earlier. wherefavored “using the evangelical Protestants who tended to be of Protestant morali- to enforce basic standards legislature and courts ty,” the constitution that they proposed (like the virtually identical 1846 that they proposed (like the virtually the constitution document) was Jacksonian creation,” a “largely History and Principles of the Whigs of the Territory of Iowa P 794 of Iowa,the Territory the Supreme to grateful blessings for the Being on Him our dependence enjoyed, and feeling hitherto for a continua- independent a free and ordain and establish blessings, do tion of those .” . . . government, by the nameof Iowa of the State 2S rights to black citizens. treatmentof banks and regulation elsewhere at the time, favored a broader range of rights for African Americans and thus opposed “the state’s virulently racist stance on black in-migration.” Cook, 95. Although the Whigs than Democrats of the rights of black citi- were more supportive descent viewed the Whig“vehi- party as a zens, many Catholic Iowans of Irish and German cle for bigoted evangelical Protestantism.” Cook, tion of the preamble. the preamble, suggesting that the principal purpose of the preamble would borders. The initial draft that the be to identify the state’s Committee proposed did not refer to God; instead, it borrowed the purposes stated in the preamble of the fede could circulate as currency. Democrats and twenty-one Whigs). The ratio of Democrats to Whigs was similar at the and ten Whigs.1846 convention, which had twenty-two Democrats support for the so-called blue laws against gambling, desecration of the sabbath, and drink- ing came from the Whigs.”); Pelzer, 39285-mqt_100-3 Sheet No. 66 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 66 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 67 Side A 06/19/2017 09:53:44 see 167 note 170 supra ONSTITUTION FOR C 795 795 at 175–81 (newspaper cover- note 166, at 48, and whether that Whenthe Committee re- ]. ORMATION OF A 166 F see also id. supra , the convention touching on reli- the convention touching OURNAL J OURNAL OWA J at 16, 31 (motion of Elijah Sells); Cook, ) 6/12/17) 1:49 PM OWA I note 159, at 12–20; ELETE See id. note 159, at 156. note 166, at 46. The Committee on Revision did not pro- note 166, at 46. The Committee on Revision (The preamble to the state’s original consti- ONVENTION FOR THE note 159, at app. at 405–15 (providing roster of delegates to note 159, at app. at 405–15 (providing roster D see note 166, at 46. C note 159, at 25. 171 OT OT supra N supra supra O supra GOD AND STATE PREAMBLES AND STATE GOD supra , supra , (D DOCX . 17 (1845) [hereinafter I OURNAL Unlike other matters at J OURNAL INAL J OWA OURNAL OF THE -F Shambaugh, 168 I Shambaugh, J OWA See . of 1848, pmbl. OWA I UTTLE civil, political, and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, in order to form a more perfect government, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the State of Illinois. the journal of the convention does not reveal any debate over does not reveal any debate of the convention the journal .See .See &T 169 ONST TATE OF 168. I 167 171. We, the State of Illinois grateful to Almighty the people of God for the 166 169. There over an earlier motion by a Whig was controversy delegate (and supported 170. The preamble 1848 constitution borrowed to Illinois’s both from S M K .C MITH MITH . at 38–41; Shambaugh, C Y LL the convention, with party affiliations). I ported its draft to the Committeeported its Whole, of the consid- the convention amendments adopted several ered and an language, including to the Campbell, B. Caleb named moved by a Whig delegate amendment, the proposal, stating merelythe proposal, stating the amendment that “was agreed to.” gion, clause or a religious test clause would be interpreted to permit atheists to testify in court, to permit atheists to interpreted clause or a religious test clause would be id tution, adopted upon admissiontution, adopted not refer to to the union in 1818, did convention do not include detailed ac- God.) The records of the 1847 that the initial draft of the pream-counts of the debates, but it is clear Committeeble, proposed by the convention’s Reform, on Law did not refer to God; instead, it borrowed the federal preamble, simply substi- 2017] state. of the boundaries the proposed fied in the preambleto insert to the Supreme “grateful the phrase of Ruler the Universe, the blessings hitherto for as a people, and ac- enjoyed knowledgingdependence upon Him our of those for the continuation blessings.” 2S pose any changes to the amended language, and the convention approved the preamble as pose any changes to the amended language, amended. the federal preamble, in its statement and from of purposes, the preambles Island and New adopted in Rhode several years earlier, Jersey God.in its reference to THE 146, at 94 n.19; Shambaugh, by most Whig prayer “to Almighty God,” which delegates) to begin each session with Democratic delegates defeated. age of debate). There was also controversy over a proposed provision to prohibit discrimi- age of debate). There was also controversy nation on the basis of religion, 39285-mqt_100-3 Sheet No. 67 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 67 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 67 Side B 06/19/2017 09:53:44 ] M K 174 C Y The The LLINOIS LLINOIS EBATES I 172 D 7, 1847, at The rec- UNE 175 ,J LLINOIS at 953, 955–57, 967, 970, PRINGFIELD OLLECTIONS OF THE [100:757 [100:757 supra S , Awakening. We have al- 14 C in EBATES D lifornia, Maryland, Ohio, Indi- 1847, 176 SSEMBLED AT ,A note 174, at 931. LLINOIS I ]. r “the Unitedr “the of America.” States supra EBATES OF ) 6/12/17) 1:49 PM , D see also note 172, at 511. ELETE ONVENTION D OURNAL C J EBATES OT OT D supra N MARQUETTE LAW REVIEW MARQUETTE , 978–83 (Arthur C. Cole ed., 1919) [hereinafter I 978–83 (Arthur C. Cole ed., 1919) [hereinafter O (D When the Committee con- its draft to the reported LLINOIS 173 LLINOIS IBRARY ONSTITUTIONAL I DOCX OURNAL . J L C INAL note 172, at 532–36; HE OURNAL OF THE -F see also T J at 439–40. ; LLINOIS I supra UTTLE , ISTORICAL .Id. .Id. .See .Id. .See &T H 173 174 176 172 175. In this era, New York, Wisconsin, Ca In seeking a divine blessing for the people’s future attempts blessing for the people’s future In seeking a divine at self- MITH MITH TATE OURNAL (providing biographical information about delegates). It is not clear if support for including devotional language was limited to Illinois Whigs. A committee equally divided between Whig and Democratic delegates drafted an “address to the people of the state” to accompa- I ny the draft constitution that concluded with “an appeal to Almighty God.” vention the followingvention week, William Thomas, a Whig delegate, ords of the convention simplyords of the convention state that “the question was taken, and the preamble, as amended, adopted.” ana, and Minnesota albeit also adopted preambles referring to God, without for a Divine an express request blessing. Even though they all adopted Type 1 language, the mere fact that they referred to God in their preambles was itself a mark in some of the influence, more states Great obviously than others, of the Second the movementready described the influence of in New York, and four 1 preamblesof the other states to adopt Type in this era were in the Ohio Valley and the upper Midwest, to which the movement initially governance, the 1840s preamblesgovernance, the adopted Island, New in Rhode Jer- sey, Iowa, lan- echoed the Puritan-influenced and Illinois strongly Massachusettsguage of the 1780 preamble. Aswe have noted, the ge- Great Awakening’sographical pattern of the Second and the influence, Whig influence on the crafting of the preambles, suggests that the choice of the more Type 2 language in these states robustly theological was intentional. S J 796 fo of Illinois” “the State tuting moved to amend expressing grati- the clause the preamble adding by tude to God “He for the liberty that has so long permitted us to enjoy, and looking to Him to secure and for a blessing upon our endeavors transmit the same unimpaired to succeeding generations.” 2S 395 (1847) [hereinafter I convention then referred the draft of the preamble the draft of the then referred convention and the first few ar- the Committeeticles to and Adjustmenton Revision Articles of the of the Constitution. 980 (providing biographical information about delegates). 39285-mqt_100-3 Sheet No. 67 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 67 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 68 Side A 06/19/2017 09:53:44 at id. . of 1876, . of 1851, ONST ONST 182 C .C (comments of Mr. EX or the right to HIO id. T ONVENTION FOR THE 179 C See Id. 797 797 1054 (1846) (comments of Mr. ORK freedom, Y . of 1858, pmbl. 178 EW . O of 1846, pmbl.; N ONST .C ONST The lack of controversy is likely The lack of controversy is likely Although from they differed Con- ROCEEDINGS OF THE P 183 181 INN TATE OF without explicitly seeking a continued establish this Constitution.” S rence to God, and was, as one delegate as one delegate and was, rence to God, 180 ) 6/12/17) 1:49 PM ELETE note 122, at 130. D OT OT EBATES AND supra N D , 184 O . The preamble thus echoed the earlier Type 1 pre- of 1845, pmbl. GOD AND STATE PREAMBLES AND STATE GOD (D . M of 1851, pmbl.; .N.Y. of 1849, pmbl.; C . of 1849, pmbl. ONST . of 1851, pmbl. DOCX . ONST ONSTITUTION OF THE .C notes 112, 117–20. The preamble to the 1846 constitution provided, “We, . of 1848, pmbl. OUGHLIN C ONST .C L ONST EX In addition, although the preambles although In addition, mere-these states in ONST INAL C D -F .C .C .C 177 ONST M M AL AL EPORT OF THE .C ND UTTLE IS .See .See . See supra &T 182. C 180. I 177 179. C 183. R 178 184 181. The during this era only other state to adopt a preamble with a reference to God In some there was of these states, the no controversy at all over The preamblesstates all follow in these the same verbal formula, M K MITH MITH EVISION OF THE C Y explained by the fact that New (from York replaced a constitution version of a Type 1 reference to 1821) that already included an earlier God in the preamble. pmbl. ambles of Connecticut and New York, referring to the “grace and beneficence of God.” referring to the “grace and beneficence of God.” ambles of Connecticut and New York, a Type 2 preamble. Texas later adopted a new constitution with adoption of language referring to God. At the New York convention convention York New the At God. to referring language of adoption in 1846, for example, the discussion about the proposed preamble was did not focus on the refe brief, stated, an “unimportant matter.” pmbl.; W necticut’s earlier Type 1 preamblenecticut’s earlier they used to express in the language the preambles the basic characteristics of gratitude to God, echoed approach, and becameConnecticut’s earlier the model for future Type 1 preambles. California’s 1849 preamble is typical; it provides, “We, grateful to Almightythe people of California, God for our freedom in blessings, do order to secure its Kirkland). One delegate complained that the proposed preamble was “too narrow,” because the delegates “established the Constitution for something besides freedom,” 1054 (comments of Mr. moved to strike out the proposed Simmons), and another delegate preamble and replace it with the preamble from the 1821 constitution, Tallmadge). After brief discussion, the amendment failed, and the delegates then voted Tallmadge). After brief discussion, the amendment failed, and the delegates then unanimously to adopt the language proposed by the committee. R 2017] expanded. 2S choose a form of government ly expressed gratitude to God rather than invoking God’s blessing, in God’s than invoking God rather gratitude to ly expressed other than Newevery case ac- each state’s first represented York they knowledgment God of in its constitution. to God for liberty, expressing gratitude blessing upon human endeavors. was Texas, whose 1845 constitution upon admission to the union admission was Texas, whose 1845 constitution upon “acknowledg[ed] with us to make in permitting gratitude the grace and beneficence of God, our a choice of form of government.” T 39285-mqt_100-3 Sheet No. 68 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 68 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 68 Side B 06/19/2017 09:53:44 M K 50, See C Y The The ISCONSIN ISTORICAL 187 W H ISCONSIN W See ONVENTION OF C TATE S HE TATE OF S however, and ulti- however, 188 . of 1846, pmbl. [100:757 [100:757 There was a similarly ONST 189 C Godthat was to the identical UBLICATIONS OF THE ] (report of the committee on general pro- God in the bill of rights, presum- 27 P ONSTITUTION FOR THE arguing that the proposed constitu- that the proposed arguing mmittee initial version of drafted the note 185 at 389. C in OURNAL 186 ) 6/12/17) 1:49 PM 1846, , supra ORM A of admission to the union, for example, the union, for to of admission an 1847 J a delegate moved to amend the proposal to F ELETE D 190 1846 OT OT N moved in the proposed to strike the language MARQUETTE LAW REVIEW MARQUETTE O at 143 (convention vote on the preamble and the declaration of ISCONSIN 185 (D 794 (Milo M. Quaife ed., 1919) [hereinafter T id. . (“We, of 1848, pmbl. the people of Wisconsin, grateful to Almighty note 186, at 50 (report of the committee on general provisions, which ONVENTION OF DOCX . C ONVENTION TO C ONST ONVENTION OF INAL supra HE C ISCONSIN -F , .C T W (noting that the vote against Strong’s motion was 73–10). (noting that the vote against Strong’s motion IS HE . of 1776, pmbl. T UTTLE .Id. .See &T ONST OURNAL 187. 186. The with gratitude the grace proposed preamble would have “acknowledge[ed] 188 189. W 190. After stating a grievance with the Crown, the preamble to Maryland’s 1776 consti- 185 In other states there was there states In other modest over whether controversy a refer- .C MITH MITH D OCIETY OF OURNAL OF THE preamble God, that referred to drafted the preamble); brief debate at the 1850 Marylandbrief debate at the over whether convention refer to to God preamble. in the After a co the preamble,of the preamble to the language adhering closely to the state’s prior constitution, visions). convention overwhelmingly the motion, rejected ably in the provision addressing the free exercise of religion. addressing the free exercise ably in the provision tion said enough about the subject of tion said enough influential delegate influential God for our freedom; in order to secure its blessings, form a more perfect government, in- general welfare; do establish this Constitution.”). sure domestic tranquility and promote the drafted a language took place at the 1846 convention, which The debate over the preamble’s of controversial provisions on banking and other constitution that voters rejected because at a new convention in 1848, which the vot- matters. The state drafted another constitution the failed 1846 doc- unlike the preamble in ers approved. The preamble to that document, constitution, with the addition of three secular ument, was identical to New York’s 1846 beenpurposes. There does not appear to have about any debate at the second convention chose not to adopt for why the delegates the language of the preamble, nor any explanation used in the rejected 1846 version. the “grace and beneficence” formulation ence to God in the preambleence to Wisconsin’s was 1846 At appropriate. in anticipation convention 1847 J the people of the State of New York, grateful to Almighty God for our freedom; in order to the people of the State of New York, grateful N.Y. secure its blessings, do establish this Constitution.” S more to Mr.1846] (“The first constitution probably owed [Moses] than to Strong’s influence that of any other man.”). to make choice of our form of government.” and beneficence of God in permitting us 798 reference in New 1846 constitution. York’s J 2S mately language referring to adopted 628 (1848) [hereinafter W rights, which were approved by a large margin). tution stated: “[W]e, the Delegates of Maryland, full Convention assembled, tak- in free and ing into our most serious consideration the best means of establishing a good Constitution .” . . . in this State, for the sure foundation and morepermanent security thereof, declare M 39285-mqt_100-3 Sheet No. 68 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 68 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 69 Side A 06/19/2017 09:53:44 EW N ARYLAND The du- ONSTITUTION EBATES AND ORM A 192 C F ]; D TATE S 799 799 EVISE THE ROCEEDINGS R P ONVENTION TO C The convention ultimately The convention Because there was there Because also brief 193 191 TATE S debate over the proposal from the ARYLAND at 238 (comments of Mr. Parke) (stating that God.” (and changed the language of the (and changed ] (referring to motion of Mr.Parke) (moving to ONVENTION TO a C 194 note 191 at 260–61. note 191, at 238–39 (“Mr. John Newcomer now of- ) 6/12/17) 1:49 PM ARYLAND EBATES See also id. D supra M EFORM , not contain any reference to God. any reference not contain ELETE R supra D , at 239 (comments of Mr. even- Chambers). The convention OT OT Id. . of 1851, art. 33. . of 1851, art. 33. N note 191, at 4–5. One delegate argued in favor of the version of O GOD AND STATE PREAMBLES AND STATE GOD ARYLAND EBATES (D ARYLAND ONST D supra . of 1851, pmbl. ROCEEDINGS M , .C P DOCX note 191, at 260–61. . D ONST INAL supra 260 (1850) [hereinafter M .C -F EBATES , D ARYLAND D ROCEEDINGS OF THE M M ARYLAND UTTLE &T 194. 191. P 192. 193. The the exclusion convention had previously adopted a provision that prohibited In other states, in contrast, there wasIn other states, over substantial controversy M K MITH MITH ARYLAND ONSTITUTION ROCEEDINGS ROCEEDINGS OF THE C Y “the great object of his amendment, was to acknowledge our gratitude to Almighty God for was to acknowledge “the great object of his amendment, upon us”). Mr.the signal blessings which he had bestowed Parkes did not object to the an- change the proposal to express gratitude “to Al- other delegate’s friendly amendment to mighty freedom.” God for our civil and religious liberty,” rather than for “our M debate over whetherdebate over the preamble the consti- expressly declare should language that proposed another delegate act of the people, tution an but that did so, would do eling proposals—with to God one referring without and the other any such reference—prompted a ref- brief discussion about whether only erence to “Almighty God” would with be consistent the convention’s (ultimatelyearlier decision a provision protecting revisited) to adopt persons from disqualification as witnesses, if jurors, or officeholders the existence of they “believe[] in P C P 2017] to God. gratitude of an expression add 2S amend the proposal to state, “We, the people of Maryland, God for grateful to Almighty our own freedom, in order to establish order, and perpetuate liber- justice, maintain public ty, do ordain this Constitution.”). adopted the version of the preambleadopted the version God that expressed gratitude to liberty”for “civil and religious fered his substitute for the preamble, as follows: ‘We,fered his substitute for the preamble, as of Maryland, the people of the State by our delegates in Convention assembled at the City of Annapolis, taking into our most establishing a good Constitution in this State, de- serious consideration the best means of clare’”); M 236 (1851) [hereinafter M qualification provision). qualification provision). whether to refer to God. At 1849 convention to adopt California’s the first constitution, there was a robust committee charged with drafting the preamble, which proposed lan- tually changed the language in the qualification clause to protect persons who believe “in tually changed the language in the qualification clause to protect persons who believe ac- the existence of God, and that under his dispensation such person will be held morally either in this world or in the countable for his acts, and be rewarded or punished therefor, world to come.” M the preamble without a reference to God only because he thought it the only approach con- the preamble without a reference to God only because he thought it the only approach sistent with that prior vote. of persons as witnesses, officeholders so long as they “believe[] in the existence of jurors, or person will be held morally accountable for his a God, and that under his dispensation such either in this world or in the world to come.” acts, and be rewarded or punished therefor, M 39285-mqt_100-3 Sheet No. 69 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 69 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 69 Side B 06/19/2017 09:53:44 M K 195 ON , C Y In his his In 198 ALIFORNIA , 1849, at 378–79 C they eventual- and that “[i]f we 202 at 379–80 (referring to CTOBER Charles(an- Botts 200 id. O 196 [100:757 [100:757 ONVENTION IN Although the delegates, at 379 (comments of Mr. Norton) C at 416 (stating that “although we 201 at 379 (comments of Mr. Shannon). In the people, in voting to adopt the people, in voting EPTEMBER AND S see also id. see also id. See id. EBATES OF THE ey] do[] not intend to say.” ey] do[] not intend D ]. There was also debate over whether the pream- ]. There was also debate over whether the ) 6/12/17) 1:49 PM (comments of Mr. Hastings); Id. ELETE EBATES ONSTITUTION IN D D C OT OT N MARQUETTE LAW REVIEW MARQUETTE O EPORT OF THE TATE declared that he “had always declared that he to the been opposed (D S 197 ALIFORNIA DOCX . INAL -F (comments of Mr. Botts). at 417 (comments of Mr. Norton); at 417. at 379. the free and independent people of at 416 (“In order to institute a government, at 417 (comments of Mr. Steuart); Other the reference to God, delegates defended that arguing UTTLE .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. 199 &T ORMATION OF THE 201 202 200 196 197 198 199 195. The proposal of the Committee on the Constitution read: “We, the people of Cali- F MITH MITH (stating that “it is proper, doing so solemn an act, that we should make a due reference to to reference due a make should we that act, an solemn so doing proper, is “it that (stating the Supreme Being”). may not (some of us at least) be in the habit of praying, where an opportunity occurs when when occurs opportunity an where praying, of habit the in be least) at us of (some not may it would be not only appropriate but proper to do so, that we should do it”). can, by supposition, get a prayer out can, by supposition, get a prayer those whoof are not in the habit of praying, we by all means should do it.” THE “we should make to the Supreme a due reference Being in performing a work of such magnitude and importance as this,” acting as a committee adopted one of several of the whole, initially proposals for the preamble with no reference to God, ly returned to the original proposal of the committeely returned to the original proposal on the constitu- 800 borrowed consciously guage from Newconstitution. 1846 York’s When the committee Ser- the convention, its proposal to first reported ranus Hastings, who a delegate later became California’sfirst Chief in an in- necessity of inserting not “see the that he could Justice, stated God.” Almighty to prayer a kind this of strument 2S ble should refer to the people of the “State” of California when, until admission,ble should refer to the people of the “State” California would merely retain the status of a territory. addition, some delegates thought that a preamble and that if there were a was unnecessary, preamble, the shorter the better. comments of Mr. McCarver) resolution to annex (“If we sit here much longer we will have a New York, Constitution and all”). California do ordain as follows”). the document, what to “say [th abuse of the language of prayer and thanksgiving on occasions of this of prayer and thanksgiving abuse of the language prin- in it,” “thought there was an inappropriateness kind” because he it wouldcipally because force some of (1850) [hereinafter C view, for devotion—not “the closet is the proper place the ballot- box.” fornia, grateful to Almighty God for our freedom,fornia, grateful to Almighty God for our in order to secure its blessings, do establish this Constitution.” R other future state judge), who proposed alternative language that did judge), who proposed alternative other future state not refer to God, 39285-mqt_100-3 Sheet No. 69 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 69 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 70 Side A 06/19/2017 09:53:44 851 (1850) NDIANA TO I note 204, at He argued argued He supra 205 NDIANA The adopted adopted The I , ROCEEDINGS OF THE ] (“We, the people of P 203 TATE OF S note 204, at 852. EBATES 801 801 TATE OF D S OURNAL J supra , make broad theological at 855 (comments of Mr. Murray) EBATES AND D NDIANA EOPLE OF THE EBATES NDIANA P D accord id. but a delegate, Mr. but a delegate, Hall, moved 204 NDIANA ONSTITUTION OF THE C EPORT OF THE ) 6/12/17) 1:49 PM do establish this Constitution.”do establish note 204, at 318; I withminor modifications. note 204, at 852. ELETE D ]. ONVENTION OF THE supra OT OT C , N , supra 165 (1851) [hereinafter I O GOD AND STATE PREAMBLES AND STATE GOD (D note 204, at 318; I EVISION OF THE EBATES R D EBATES because they “did not think we were here as a syna- because they “did not think we OURNAL DOCX . D J supra 207 , INAL ONSTITUTION -F NDIANA at 854 Morrison); Mr. of (comments C The convention decided to strike the words “the State of” in the phrase “peo- “the State The convention decided to strike the words NDIANA NDIANA OURNAL OF THE I OURNAL UTTLE We, of Indiana, acknowledging the gracious the people of the State prov- great and manifold blessings of idence of God, in bestowing upon us the in vouchsafing to us a condi- a Christian civilization; and, in particular, tion of society in which the social, political, and religious rights con- ferred by Him on mankind are recognized and respected; for the protec- and the establishment of justice, liberty, and the . . . tion of these rights general well-being, do solemnly ordain this Constitution. and establish J .Id. .Id. .Id. 206 &T 205. I 203 204. J 207 206. At Indiana’s 1850 constitutional convention, there similarly convention, 1850 constitutional At Indiana’s was Hall’s vigorous discussion. Two proposal provoked a delegates M K MITH MITH MEND THE ONVENTION FOR THE C Y NDIANA to amend the proposed preamble language “acknowl- by substituting God, in bestowing providence of edging the gracious upon us the great and manifold blessings of a Christian civilization.” that such language wasthat such language and he pre- appropriate for a Christian people, such a state- the state asking for fromsented petitions of citizens ment. (explaining that even though he had “no objection at all to the language of the substitute,” (explaining that even though he had “no objection at all to the language of the substitute,” version of the preambleversion provides, “We, of Cali- People of the State the to Almightyfornia, grateful for God our freedom, order to secure in its blessings, and perpetuate substantial debate over whethersubstantial debate include to a reference to God and, in particular, whether the reference should claims. The committee charged withpreamble drafting the proposed not refer to God,language that did the State of Indiana, in order to establish justice, maintain public order, and perpetuate lib- justice, the State of Indiana, in order to establish erty, do ordain this Constitution”); R A C 2017] whichtion, adopted they 2S [hereinafter I 852. I stated that although they had no objection, as a matterstated that although they had no of their person- the Almightyal faith, to the suggestion that all his “superintends not see and disposes the hearts of people to do good,” they did works, why it was that these sentiments “necessary be inscribed in the should Constitution,” ple of the State of California,” in order to appease those who expressed concern about the ple of the State of California,” in order to before admissionoddity of a territory declaring itself a state to the union, but kept the language, drawn from New York’s preamble, expressing gratitude to God for freedom. 39285-mqt_100-3 Sheet No. 70 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 70 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 70 Side B 06/19/2017 09:53:44 M K 210 HIO C Y note 204, at supra , 212 ONVENTION FOR THE C (comments of Mr. Ow- EBATES D [100:757 [100:757 with id. 70 (1851) [hereinafter 1 O Although it is not clear NDIANA note 204, at 853 (comments of Mr. HIO 214 O le’s trust in the “favor and pro- le’s trust in the “favor supra , form of government” and is “a more appro- ROCEEDINGS OF THE P TATE OF note 204, at 1974 (comments of Mr. Foster) (pre- at 1967 (comments of Mr. Niles) (arguing that an S OURNAL J ) 6/12/17) 1:49 PM supra note 204, at 857 (noting that the vote was 72–43); note 204, at 857 (noting that the vote but eventually adopted language merely but eventually , and id. note 204, at 319–20; I 213 ELETE D EBATES AND supra NDIANA The convention rejected Mr. The convention Hall’s proposal OT OT supra EBATES D , , N MARQUETTE LAW REVIEW MARQUETTE D 209 O . of 1851, pmbl. (“We, the people of the State of Ohio, grateful to (D note 204, at 321–22. EBATES . (“To the end that justice be established, public order of 1851, pmbl. ONST D ONSTITUTION OF THE OURNAL DOCX J . C supra NDIANA C , I adopted a modifiedversion of the committee’s original ONST INAL HIO -F 211 EPORT OF THE .C Several delegates then sought a compromise, delegates then Several proposing O at 855 (comments of Mr. Murray). NDIANA NDIANA I 208 ND OURNAL UTTLE J .Compare .See .Id. .Id. ] (comments of Mr. Mitchell). &T 211 210. 214 213. R 1 212. I 208 209. I The influence of the partisan dynamicThe influence of that we was described above MITH MITH EVISION OF THE EPORT NDIANA I proposal. The substitute expressed gratitude to God “for the free exer- God expressed gratitude to proposal. The substitute to choose cise of the right our own form of government.” ferring language expressing gratitude to God for freedom,ferring language expressing gratitude to that “free- because he thought dom” “implies the right to establish our own priate and comprehensive phrase”), McLean). R R because “it is what I acknowledge every night because “it is what I acknowledge every night in my life,” he was and profess and morning, “unable to see any special necessity for introducing it into the amended Constitution”). 802 to makegogue the Divines to appeal a special this in their advice for matter.” and, after some what debate over express preamble exactly the should thanks for, 2S amendments to the committee’sinclude more proposal to original modest would such proposal to God; one references have expressed to Godgratitude freedom, for a right to choose another for the and form of government. tection of Almighty God,” apparent at somestate conventions, as well. of these For example, at the Ohio lan- the delegates initially considered convention in 1850, guage that would the peop have stated expressing gratitude to God for freedom.expressing gratitude to God for maintained, and liberty perpetuated: We,the State of Indiana, grateful to Al- the People of do or- mighty God for the free exercise of the right to choose our own form of government, dain this Constitution.”). expression of gratitude for freedom is more a full accurate and elegant and “would convey affairs, and of our obligations of gratitude recognition of the Divine Providence in human government”), for the blessings which are secured by good en) (noting that the delegates were assembledchoose their own form of government, and to manner, to thank God for what we enjoy, we that “while we are about, in this solemn correspond with the particular work in which should make that expression of thankfulness we are engaged”). 851–55. Another delegate, perhaps sarcastically, proposed an amendment that would sub- been permit- Convention assembled, having “[I]n stitute language that did not refer to God: to remain here so long, do ordain and ted, by the favor and patience of our constituents, establish this Constitution.” I 39285-mqt_100-3 Sheet No. 70 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 70 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 71 Side A 06/19/2017 09:53:44 . T 217 .S LEV 326 (1851) note 215 at , 51 C HIO Each con- ROCEEDINGS OF O . of 1858, pmbl. P supra 219 , REPARATORY TO ITS ONST ONVENTION FOR THE P C TATE OF .C EPORT S R 803 803 INN EBATES AND HIO D 2 O ONSTITUTION e parties met in separate con- C ONSTITUTIONAL see also C ng the receipt of a petition fromng the receipt of TATE EPORT OF THE ONSTITUTION OF THE S C 410 (1858) (discussing the possibility of having ) 6/12/17) 1:49 PM TATE Party; only about one-third were Whigs. only about Party; ORM A S F Ohio’s Constitutions: An Historical Perspective ELETE D note 213, at 157; O Because of intense animosity between Demo- OT OT ,T N EVISION OF THE ] (referring to motion made by Mr. Woodbury), which the dele- 218 ROCEEDINGS OF THE O supra R GOD AND STATE PREAMBLES AND STATE GOD P , (D NION AS A U note 213, at 157. EPORT DOCX R . EPORT INNESOTA R One of en- for the convention’s lack possible explanation M supra INAL HIO , -F 216 HIO Barbara A. Terzian, NTO THE I EBATES AND UTTLE at 370. Ohio also voted for the Democratic candidates for President in 1848 (when at 370. Ohio also voted for the Democratic EPORT .See R This is the case notwithstandi This is the case Id. &T . 357, 371 (2004) (noting that sixty-eight of the delegates were Democrats, while only . 357, 371 (2004) (noting that sixty-eight of ONVENTION FOR THE 215 215. There over a proposal to change the phrase “people of” was modest controversy 216. O 1 218. The preamble to Minnesota’s 1858 constitution, adopted upon admission to the 219. D 217 In Minnesota, in contrast, members in contrast, In Minnesota, which Party, of the Republican C EV M K HIO MITH MITH DMISSION ERRITORY OF C Y citizens urging the delegates to acknowledge God, “his gracious Prov- delegates to acknowledge God, citizens urging the obligations of his lawidence, and the as revealed in the Scrip- tures . . .” . gates rejected, but no apparent debate over the reference to God. gates rejected, but no apparent debate over T A L. R Almighty God for our freedom, to secure its blessings and promote our common welfare, Almighty God for our freedom, to secure do establish this constitution.”). 2 R to “the free white male citizens within,” 2017] why committee the which to the preamblereferred then delegates the that language—andropped that led the delegates of cholera outbreak and reassembleto adjourn city also left some in a different later gaps records—therein the convention have been any not appear to does meaningful in the pream- referring to God the language debate over ble. 2S union, provides, “We, the people of the State of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and our posterity, do ordain and establish this constitution.” M Zachary Taylor, a Whig, won the Presidency) and 1852. forty-one were Whigs). Indeed, the Whigs in the legislature had opposed the calling of a convention, but they were outvoted by Democrats, who wanted a new constitution to re- corpora- power to incur debt and charter form the judiciary and to limit the legislature’s tions. [hereinafter 2 O THE thusiasm for a preamblemaking more robust claims the role of about majorityGod is that a sizable wereof the delegates at the convention members of the Democratic inherited most former Whig the supporters of Party, were responsible of the preamblefor the language God for civil expressing gratitude to and religious liberty. th crats and Republicans in the territory, ventions, with to draft a new each seeking constitution. morality, and knowledge, are essential to the good government and happiness of mankind, morality, and knowledge, are essential to protected, schools and means of instruction be en- that therefore the church of God shall be inconsistent with the rights of conscience.” is not couraged by legislative provision, as far as 120. The petition also sought a clause in the Bill of Rights declaring that “as Christianity, 120. The petition also sought a clause in 1 O 39285-mqt_100-3 Sheet No. 71 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 71 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 71 Side B 06/19/2017 09:53:44 M K C Y at 88– Alt- Id. 223 ONSTITUTIONAL at 204–11. C Id. 224 [100:757 [100:757 INNESOTA M in the preamble referring to did not refer to God. did not refer to At the 1850 Maryland conven- stitution with preamble the that (comments of Mr. North) (same). 225 oposed one constitution that both one constitution oposed e specific language referring to God ) 6/12/17) 1:49 PM see also id. stitutions. As at noted above, the delegates ROCEEDINGS OF THE note 204, at 855 (comments of Mr. Murray). ELETE P D OT OT supra at 504 (adopting the proposed preamble). There was brief de- at 504 (adopting the proposed preamble). N , MARQUETTE LAW REVIEW MARQUETTE O At the Democratic convention, in contrast, the (D 221 222 EBATES DOCX . D See also id. Late in the proceedings, the the proceedings, Late in form two to parties agreed EBATES AND at 88 (motion of Mr. man Galbraith), arguing that although “[t]here is no D INAL 220 id. -F 203 (1857) (“We, the People of Minnesota, in order to form a State Govern- at 78. at 410–13, 504. at 604–16. HE NDIANA I UTTLE the people of the Territory recognize a higher power than the law of the the people of the Territory recognize a higher all just law is based, and his land; and the will of God, upon which us to enjoy our civil kindness, mercy and goodness to us, in permitting by us in the very com- and religious privileges, should be recognized mencement of our work. .Id. .Id. .Id. .Id. .Id. &T 223. T 220 221 222 224 225. Perhaps not surprisingly, the language Perhaps not surprisingly, There are also indications that the delegates at manyThere are also indications conven- of the at 89 (comments of Mr. Hayden); MITH MITH ONVENTION Id. God came from the Republi- considered and adopted at a provision cans’ convention. hough there is no record of the deliberations of the conference commit- of the record of the deliberations hough there is no adopted a con tee, both conventions had previously approved. the Republican convention tion, the delegate who proposed th 99. But two other delegates spoke against the amendment, arguing that C “two separate and distinct Constitutions”). “two separate and distinct Constitutions”). 804 of independently provisions and adopted considered, drafted, vention as convention the opposition’s viewed and each convention the other, illegitimate. convention. One delegate movedbate over the proposal at the Republican to delete the reference to God, why put that in this Constitution[?]” . . . here but recognizes a Divine Providence 2S delegates had approved a preamble that delegates had approved tions were aware adopted in their the language that other states had of preambles, and that several simply borrowed language from other states’ recently adopted con the 1846 Wisconsin almost convention used language identical to New a memberYork’s. At the 1850 Indiana convention, of the committee that drafted the preamble made the committee that clear had considered the preambles in other states. a conference committee,a conference and that committee, drawing apparently on the work pr of both conventions, groups approved. ment, and to secure and perpetuate the blessings of Liberty, do ordain and establish this ment, and to secure and perpetuate the blessings of Liberty, do ordain and establish focused Constitution.”). There was extensive debate over the proposal, but the discussion on whether the preamble should define the boundaries of the new state. 39285-mqt_100-3 Sheet No. 71 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 71 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 72 Side A 06/19/2017 09:53:44 but at 356 231 There EVISE THE R 230 see also id. ONVENTION FOR THE C ONVENTION TO 805 805 C 41 (1849) (proposal of Mr. Har- And 1849 California at the 226 ENTUCKY EBATES IN THE K D ROCEEDINGS OF THE at 379–80 (comments of Mr. McCarver) (“The P 236 (1850) (proposal of Mr. Church). (comments of Mr. McDougal) (expressing hope (comments of Mr. McDougal) (expressing id. federal Constitution’s preamble, note 195, at 379 (comments of Mr. Norton). TATE OF id. S tions during this era that did not do so. era that did not do so. tions during this the committee charged with drafting the ) 6/12/17) 1:49 PM note 191, at 238 (comments of Mr. Randall). supra 229 , ICHIGAN ELETE constitutions during this period.) There was constitutions during D supra M , ROCEEDINGS AND OT OT EBATES AND P N D EBATES O GOD AND STATE PREAMBLES AND STATE GOD D (D EBATES TATE OF S D DOCX . ONSTITUTION OF THE C INAL (comments of Mr. Shannon, who called the New York preamble “the most (comments of Mr. Shannon, who called ALIFORNIA EPORT OF THE -F R C ARYLAND at 168 (describing report by Mr. McHenry on of the work of the committee EPORT OF THE UTTLE 228 though someto op- this fact alone as a reason delegates treated .Id. .See .See . See id. &T 227 229. R 230 231 226. M 227 228 Not adopted a new every state that constitution between 1840 and M K MITH MITH ONSTITUTION OF THE EVISION OF THE C Y convention, the committeeconvention, with charged preamble drafting the ex- borrowedthat its proposal plained from New 1846 constitu- York’s tion, butt-ended one that could be found”); that the convention would have “originality enough about it to form a preamble of its own, enough that the convention would have “originality State. I desire to see in this Constitution a few without referring to New York, or any other lines at least of our own manufacture”); very fact that the proposition of the Committee is from the Constitution of New York would induce me to reject it.”). pose it. R C 2017] proposed ultimatelythe delegates that his that explained approved waslanguage “similarthat which to seven or adopted in had been the Constitutionseight of the States.” of 2S gis). (report of the Committee on Miscellaneous Provisions). (report of the Committee on Miscellaneous Provisions). Miscellaneous including the preamble, which provided: “We, Provisions, the representatives of the people of the state of Kentucky, in convention assembled, to secure to all the pursuing citizens thereof the enjoyment of the rights of life, liberty, and property, and of happiness, do ordain and establish this constitution for its government.”); was debate over the proposal, which no apparent the convention ultimately adopted. The delegates to the Michigan convention in 1850 spent almost no time considering the preamble. One delegate proposed a preamble based on the 1860 included a preamble1860 included a all, six states collec- that referred to God. In constitu tively adopted seven (Louisiana adopted two(Louisiana adopted those states over the at the conventions in no substantial controversy preamblesproposals to adopt not mention that did though even God, some that the delegates in at least there are indications of the states were aware preambles of recently adopted referring to in other states God. For example, although a delegate at the 1849 Kentucky convention proposed a preamble that referred to God in language borrowed from the Iowa constitution, preamble proposed language that did not mention later God. 39285-mqt_100-3 Sheet No. 72 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 72 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 72 Side B 06/19/2017 09:53:44 M K 233 C Y 235 OURNAL TATE OF S 12 (1852). 237 or the pre- 234 That commit- That OUISIANA L 232 [100:757 [100:757 TATE OF S ONVENTION OF THE C in this constitution.” Whereas the Puritan emphasis ted constitutions withted constitutions preambles 238 ONSTITUTIONAL C ONSTITUTION FOR THE ) 6/12/17) 1:49 PM 236 C d establish this Constitution,”d establish this rpetuated, do orda EW note 122, at 137–38. ELETE D N OT OT supra N MARQUETTE LAW REVIEW MARQUETTE , O ORM A (D F note 121, at 68–107 (detailing the divisions within Presbyterian, OURNAL OF THE . of 1861, pmbl. . of 1857, pmbl. DOCX . OUGHLIN supra L ONST INAL , C ONST -F .C .C at 888; J R OEN EX 460 (1850). UTTLE ONVENTION TO .Id. .Id. C &T 235. O 236. T 237. Texas’sGod in language 1845 constitution, adopted upon admission, referred to 238. G 232 233 234. Amotion to create a special committee to draft and report a preamble and bill of It is perhaps surprising, from our vantage point today, to find that Second, as we noted above, the Second Great Awakening had Whereas in 1840 the states with to God in constitutions referring MITH MITH ICHIGAN tee eventually proposed a simple proposed tee eventually preamble did not mention that God—”The of Michigan of the State People ordain this Constitu- do tion”—andit without debate. any apparent adopted the convention Methodist, driven by Southern and Baptist polities that led to North-South splits, generally rejection of reformist – and particularly abolitionist – ideas emerging from the Second Great Awakening); M the states in the South were the last to embracethe states in the South were the last the practice of invoking God preambles. in their constitutions’ reasons why There are three the trend was First, between slow 1840 and 1860, a to reach the South. time when God in preambles references to were becoming the norm, adopted newonly three future confederate states constitutions. OF THE M 806 he withdrew when the resolution informed committee that the on wouldphraseology for the preamble. draft language There similarly wasno meaningful debate over the preamble to Loui- whichsiana’s 1852 constitution, provides, “We, the people of the State ordain an of Louisiana, do 2S much more limited, and quite different, meaning in the South than it the North and the Midwest. in did amble 1859 constitution, which to the Oregon’s provides, “We, the of Oregon,people of the State justice be established, or to the end that maintained, and liberty pe the preamble were by 1860 almost the exceptions, half of the states had adop (sixteen out of thirty-three) diverse, with The trend was geographically referring to God. the ex- Onception of the states in the South. eve of the Civil War, the Texas would join the Confederacy that re- was the only state of those that ferred to God in its preamble. apparently borrowed from New York’s 1821 constitution. Florida’s original 1845 constitu- apparently borrowed from New York’s 1821 constitution. Florida’s original 1845 tion and Louisiana’s 1845 and 1852 constitutions, in contrast, did not refer to God. rights failed, as did a motion to postpone further consideration of the preamble.rights failed, as did a motion to postpone J 39285-mqt_100-3 Sheet No. 72 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 72 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 73 Side A 06/19/2017 09:53:44 1800– RDER O OCIAL S 807 807 242 the conception of the nation as a the conception of VANGELICALS AND THE E In February 1861, shortly after the In February 1861, shortly after 243 ) 6/12/17) 1:49 PM D. 1861–1877 OUTHERN ELETE ,S stitution of the Confederate States of Americastitution of D OT OT note 146, at 97. N O note 52, at 86–87. GOD AND STATE PREAMBLES AND STATE GOD (D supra OVELAND In addition, theologians and preachers in the South and preachers in the In addition, theologians supra , DOCX C. L 240 . The evangelical appropriation of this Puritan idea treat- of this Puritan appropriation The evangelical ., Cook, INAL at 167. NNE 239 ENNA -F K 241 A C UTTLE Many of the upcountry southerners who migrated to Iowa in the late Many of the upcountry southerners who because they had op- 1830s and 1840s were also Democrats, principally posed the dominance of large Whig slaveholders in states such as Ten- nessee and Virginia. Many of these people were Baptists and Method- of the more Yankeefied ists, and were naturally suspicious of moral reform in the antebel- denominations that were at the forefront lum period, particularly Congregationalists and Presbyterians. eign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America. . See, e.g . See id. .See &T 242 243. We, the people of the Confederate States, each State acting in its sover- 239. M 240 241 The trend gained a firmer foothold in the South when the conven- Once the Civil War the trend to include language however, began, Third and related, as we have explained, Whigs often were the have explained, as we and related, Third M K MITH MITH C Y tion that adopted the con which preamble, adopted a reference to God in its “invok[ed] the favor and guidance of Almighty God.” adopted a theology known as the “Spirituality of the Church,” in knownadopted a theology the Church,” as the “Spirituality of which relationship its preaching to the individual’s the church restricts God. with 2017] holy communityon a the hallmark was the movement of North in the Midwest,and the this Puritan to reject tended evangelicals Southern inheritance. 2S about God preambles in state constitution to the began to spread South. 1860, at 96–97 (1980). Id. driving force behind proposals to invoke God in state constitutions. proposals to invokedriving force behind God in state constitutions. That party, however, and even more so its Republican successors, had association between the South because of the close less influence in evangelical activism and abolitionism. unified people. ed the entire nation as the holy community. nation as ed the entire of the because Largely sovereignty, question of state the subordinate slavery and debate over many to reject in the South tended 39285-mqt_100-3 Sheet No. 73 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 73 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 73 Side B 06/19/2017 09:53:44 M K C Y An- , 1861– OF THE . In re- In TATES OF 250 S 248 ONST The dele- ]. The conven- MERICA A 247 at 95. 246 of 1861 (noting that Id. OURNAL J ONFEDERATE C TATES OF S MERICA [100:757 [100:757 A The convention then re- ONFEDERATE 251 l authority and rule.” The delegates quickly agreed quickly agreed The delegates TATES OF constitution that the delegates constitution that S ONFEDERATE for the Provisional Gov- for the Provisional 244 C ween the said States shall did not mention God. OVERNMENT OF THE G note 244, at 25–26. . of 1861, pmbl. proposed adding a strongly evangelical proposed adding a strongly evangelical supra ) 6/12/17) 1:49 PM ONFEDERATE , ONST C 249 C ELETE D ONGRESS OF THE ROVISIONAL OT OT C P OURNAL N MARQUETTE LAW REVIEW MARQUETTE J MERICA O A (D OF THE . DOCX . at 7 (stating that the convention began February 4, 1861); C at 7 (stating that the convention began February . 234, at 7 (2d Sess. 1904) [hereinafter C TATES OF INAL OVERNMENT OF THE ONST O ONFEDERATE S -F G C C OURNAL OF THE .N at 32. Chilton, a former Chief Justice of the Alabama Supreme Court, was the son of at 32. at 33. (proposal of Mr. Harrison). OC UTTLE We, the Deputies and Independent of the Sovereign Florida, Alabama, Carolina, Georgia, States of South Mississippi, the favor of and Louisiana, invoking Al- mighty of these States, ordain God, do hereby, in behalf Constitutionand establish this ernment of the same: year from to continue one the in- President, or until a permanentauguration of the Con- bet stitution or Confederation whichsoeverbe put in operation, occur. shall first of 1861. of 1861. The preamble to the provisional provided: constitution .See .Id. .Id. .See .Id. .Id. . See id. &T 245 247 248 249 250 251 244. J 1 246 245 The initial draft of the provisional The initial draft MITH MITH MERICA ONFEDERATE ROVISIONAL other delegate moved to amend merely, Chilton’s proposal to state as and “Invoking the favor of Almighty God,” an introductory phrase, the convention approved the amendment. jected a proposal to adopt a somewhat long-winded preamble that the “looking to would the Confederacy, have said that the states of claim to the preamble: “In the name of the Almighty, who the God is rightfu of the Bible, and the source of all the Constitution of the Confederate States of America was created February 8, 1861). of America was created February 8, 1861). the Constitution of the Confederate States gates, however,to remove voted that introductory reference. P A C 808 from states seceded first from delegates the union, met states those a at in Montgomery,convention Alabama. 2S considered began by stating that it was “In the name by stating that it was “In the considered began of Almighty God,” followed by a preamble that sponse, William P. Chilton, few one of the delegates who had been a party, Whig the of member 1865, S. D tion included delegates from South Carolina, Alabama, Florida, Georgia, Louisiana, Missis-tion included delegates from South Carolina, to create a provisional constitution for the Confederate for the a provisional constitution to create States of Amer- ica, which of the conven- after the opening only four days they did tion. a Baptist minister. sippi, and Texas, the seven states that had seceded as of February 1861. seceded as of February 1861. sippi, and Texas, the seven states that had 39285-mqt_100-3 Sheet No. 73 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 73 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 74 Side A 06/19/2017 09:53:44 256 —a —a The The 255 (This (This 257 254 809 809 sional constitution, which sional constitution, of the preamble the that Walker a former Brooke, . of 1861, pmbl. 252 ONST uld be adopted—the people, the C ility, and secure the bless- constitution’s “to which objectives, n delegates finally decided to adopt n delegates finally decided to adopt MERICA A ) 6/12/17) 1:49 PM ELETE D OT OT TATES OF N S O GOD AND STATE PREAMBLES AND STATE GOD (D 253 258 DOCX . INAL (proposal of Mr. Cobb, as amended by Mr. Smith). ONFEDERATE -F C at 33. at 851. at 858–59. at 859. at 895–96. UTTLE We, States, each State act- the people of the Confederate character, in order ing in its sovereign and independent to form a permanent federal government, establish justice, insure domestic tranqu our posterity invoking ings of liberty to ourselves and the favor and guidance of Almightyand God do ordain establish this Constitution the Confederate States of for America. . See id. .Id. .Id. .Id. .Id. .Id. .See &T 252 253 254 255 256 257 258 The records of the debates at the MontgomeryThe records of the debates at the Convention are not The convention built upon the text of the provisional constitution built upon the text of the provisional The convention M K MITH MITH C Y delegate proposed streamlining the clause referring to God so that it would the favor and guidance of Almighty read, “invoking God.” comprehensive, but from the information available we can offer some hypotheses about why the souther preamble language referring to God. of God First, the invocation does understanding of the relationship be- not reflect a radically different tween government religion. The delegates at the convention did and not impose any religious test for office, and they adopted wholesale Whig “moved Senator, finally that the words pream- beginning the ble”—that Almighty the favor of “Invoking the language God”— is, create the version so as to ”be transposed” delegates adopted. The delegates ultimately adopted that version of the preamble. 2017] Almighty of protection and guidance God,” and their republic created constitution. the provisional agreed upon 2S in crafting the Confederacy’s “permanent”in crafting the Confederacy’s constitution. The version that the Committeethe Permanent on drafted and pre- Constitution recited thesented to the delegates ends we and guidance of Almighty invoke the favor God.” final version of the preamble provided, was a change from of the provi the language invoked only God’s favor.) After someinvoked only God’s subjects debate over the proper on whose wo behalf the constitution of America,Confederate States individually or the states listed 39285-mqt_100-3 Sheet No. 74 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 74 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 74 Side B 06/19/2017 09:53:44 M K C Y . 549, 551 OMMENT .C ONST art. I, § 9, cl. 12; James E. , [100:757 [100:757 , 16 C Nevertheless, although Nevertheless, although 260 . of 1861 s before or at the end of the tion brought the trend to the ral roles in proposing the lan- ral roles in proposing ONST C general pattern that wegeneral have de- construction was a time of prolific note 244, at 896, 908–09. There were more than God—was present at the Montgomery MERICA t constitution, were Whigs(or former A supra ) 6/12/17) 1:49 PM , ELETE D OT OT TATES OF OURNAL S N J MARQUETTE LAW REVIEW MARQUETTE O (D DOCX seven adopted constitution . 261 INAL ONFEDERATE ONFEDERATE -F C C UTTLE So Help Me Religion and Presidential Oath-Taking God: Second, it is difficult to resist the conclusion that, given the na- that, given resist the conclusion it is difficult to Second, .See . See &T 259 261. South Carolina, Alabama, Florida, Arkansas, Texas, Georgia, and Louisiana 260 259 Although the Confederate constitu MITH MITH adopted constitutions upon secession. The four confederate states that did not adopt con- adopted constitutions upon secession. The four confederate states that did not adopt stitutions upon secession were Virginia, North Carolina, Mississippi, and Tennessee. forty delegates at the convention. We are confident that eighteen were Democrats and six were (or had previously been) Whigs. We were unable to determine the political affiliation of the remaining nineteen delegates. Pfander, constitution-making, particularly in the South. Between 1861 and (Virginia, North1877, the eleven states of the Confederacy Carolina, Alabama,South Carolina, Georgia, Florida, Louisiana, Mississippi, Arkansas, Texas, and Tennessee) collectively adopted twenty-eight constitutions. Alabama, Arkansas, and Texas adopted four each dur- Georgia, and Louisiana adopted ing this era; South Carolina, Florida, South, most confederacy did not imme- of the individual states in the diately adopt preambles This is true even though the referring to God. era including the Civil War and Re we could identify only six Whigs (or former Whigs) at the convention, two who of the delegates played cent to Godguage referring constitution, which in the provisional became the language of the permanen Whigs). Convention, as well.Of whose those affiliations we political could there wereidentify at the convention, more than three times as many Democrats as there were former Whigs, which is not surprising given in the South at the time.political affiliations scribed for other parts of the country—Whigscribed for other delegates, more in- likely fused withthe Second the fervor of Great Awakening, led the charge invoking to to include language ture of their undertaking, the delegates undertaking, ture of their to seek as likely felt the need from get, muchoth- sources or divine as they could and guidance aid erwise. that the Third, it appears 810 the Establishment Clauses Exercise Free and fromConstitu-federal the tion. 2S n.7 (1999). three each during this era; and North Carolina, Mississippi, North three each during this era; and Virginia, all after the end of the Civil War.and Tennessee adopted one each, states adopted newSeven of the eleven Confederate constitutions upon secession; 39285-mqt_100-3 Sheet No. 74 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 74 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 75 Side A 06/19/2017 09:53:44 .of . of . of ONST ONST ONST .C .C .C A A A 263 North Caroli- . of 1876, pmbl. 269 . Its 1845 of 1861, pmbl. that did not refer that did not refer ONST . of 1865; G . of 1876; G 266 .C 811 811 ONST EX Yet five other confed- ONST ONST T .C 265 .C .C EX See . of 1866. LA EX Arkansas, 268 ONST .C on secession (and, in the case of on secession (and, EX . of 1864; F . of 1875; T . of 1865, pmbl. The 1868 constitution retained ONST ONST ONST ) 6/12/17) 1:49 PM .C .C . of 1865; T .C A RK LA ELETE D ONST OT OT tly different language). N O GOD AND STATE PREAMBLES AND STATE GOD and South Carolina, (D . of 1865; A 267 . of 1874; A Texas’s 1861 secession constitution also referred to constitution also referred Texas’s 1861 secession DOCX . 264 ONST ONST . of 1864; S.C. C INAL .C -F .C LA . of 1861, pmbl. RK ONST UTTLE from the Government known as the United States of America, and being from the Government known as the United assembled, and acting in our now by our representatives in convention to establish justice, insure sovereign and independent character; in order domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity—invoking God—do the favor and guidance of Almighty of Govern- and form ordain and establish the following Constitution ment for the State of Alabama . . . . all eleven adopted neweleven adopted all between constitutions and 1870; 1868 .C A ONST &T 262 265. Texas’s 1861 preamble provided: “We, the people of the State of Texas, acknowl- 264. We, People of the State of Alabama, having separated ourselves the 262. A 266. to their 1861 secession constitutions, Arkansas and Louisiana both addition In 267. Georgia’s 1861 secession constitution did not refer to God. The preamble to its 263. A Georgiaconstitution referring to God did not adopt a in the pre- To be sure, AlabamaTo be sure, followed quickly of the Confed- the approach .C M K MITH MITH LA C Y to God in the preamble. amble until 1865, God; but this was had already not surprising, as its prior constitution sligh done so (albeit in 1865; L constitution, in contrast, expressed gratitude for the “grace and beneficence” of God. Texas for the constitution, in contrast, expressed gratitude made only a slight change, dropping the word adopted constitutions in 1866 and 1869 that for the grace of God. In 1876, Texas adopt- beneficence but continuing to express gratitude of [] God.” ed a constitution that “invok[ed] the blessings erate states—South Carolina, Florida, Arkansas, Georgia, and Louisi- Alabama’s 1865 and 1868 constitutions did not meaningfullyAlabama’s 1865 and 1868 constitutions depart from the preamble to both expressed gratitude to God for the the 1861 constitution, and the 1875 constitution right to form a new constitution and again invoked his favor and guidance. in permitting us to make choice of our form of edging, with gratitude, the grace of God, government, T do ordain and establish this Constitution.” erate constitution; the preambleerate constitution; bor- secession constitution to its 1861 rowed heavily from constitution, including the Confederate that of taking verbatim of Al- “invoking the favor and guidance the clause God.” mighty 1877, pmbl. 2017] war; 2S this language. In 1877, Georgia adopted a new constitution with a preamble stating that the this language. In 1877, Georgia adopted a new people were “relying upon the protection and guidance of Almighty God” G 1877. A and four adopted newand four between constitutions and 1877. 1873 adopted constitutions in 1864. since 1776) 1865 readmission constitution (its fifth constitution “acknowledg[ed] and invok[ed] the guidance” of God. G ana—adopted new up constitutions Arkansas the war, and Louisiana, during as well) 39285-mqt_100-3 Sheet No. 75 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 75 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 75 Side B 06/19/2017 09:53:44 M K 274 C Y 275 . of 1868, pmbl. Louisiana did Louisiana ONST 273 .C . of 1868, pmbl. RK [100:757 [100:757 ONST .C LA did not do so until 1868. Virginia Virginia 1868. so until not do did 272 . of 1868, pmbl. . of 1868, pmbl. ) 6/12/17) 1:49 PM . ONST ONST . of 1874, pmbl. . of 1874, pmbl. ELETE . of 1868, pmbl. C .C D . 1879, pmbl. In 1898, the state adopted yet another consti- of ISS OT OT ONST . of 1864 ONST N MARQUETTE LAW REVIEW MARQUETTE . constitutions had not re- of 1870, pmbl. Virginia’s prior three O .C C ONST and Florida and (D RK .C ONST 271 ONST A C .C DOCX . A VA. INAL -F See UTTLE [W]e,delegates and representatives of the people of the State of Ten- the nessee, duly elected, and in convention assembled, in pursuance of said Act of Assembly, have ordained and established the following Constitu- recommendtion and form of government for this State, which we to the people of Tennessee for their ratification . . . . Mississippi, &T 269. The did not refer to God. to Arkansas’s 1861 and 1864 constitutions preambles 275. Tennessee’s and then 1870 constitution began with several “whereas” clauses 274. Nonethe three constitutions that Louisiana adopted during this era—in of 1861, 271. The preamble to Mississippi’s1832 constitu- 1868 constitution (its first since its 268. The constitution and the 1865 read- preambles to South Carolina’s 1861 secession 272. Theto God. The preambles to Florida’s 1861 and 1865 constitutions did not refer 270. The constitution (its first constitution since its preamble to North Carolina’s 1868 273. “invok[ed] the favor and guidance of The preamble to Virginia’s 1870 constitution 270 MITH MITH Almighty God.” V not adopt a constitution mentioning a constitution not adopt God in the preamble until 1879; The state first adopted such a reference in the preamble to its 1868 constitution, which ex- such a reference in the preamble to its The state first adopted A God for our civil and religious liberty.” pressed gratitude “to 812 na, (whichand Tennessee never did. in 1870) adopted a constitution 2S first adopted a constitution referring to God in the preamble to God referring a constitution first adopted in 1870 it would(though reference); abandon the eventually tion) expressed gratitude “to Almighty God for the free exercise of the right to choose our tion) expressed gratitude “to Almighty God M own form of government.” tution with a preamble that expressed gratitude to God for “civil, political and religious lib- tution with a preamble that expressed gratitude erties.” stated, mission constitutions did not refer to God. The state first referred to God in the preamble to did not refer to God. The state first referred mission constitutions for the state since 1776); the its third constitution of this era (and sixth its 1868 constitution, the direction of the Great to “Almighty God” and “implor[es] preamble expresses gratitude S.C. Legislator of the Universe.” 1864, and 1868—referred to God. Louisiana did not adopt a constitution with a preamble 1864, and 1868—referred Louisiana did to God. seventh constitution since joining the union) its referring to God until 1879, when (in its the guidance of Almighty God, the author of all preamble “acknowledg[ed] and invok[ed] good government.” L state first adopted a reference to God in the preamble to its 1868 constitution, which ex- state first adopted a reference to God in freedom.” F pressed gratitude “to Almighty God for our The preamble to the 1874 constitution used the same language by expressing gratitude “to 1874 constitution used the same language The preamble to the [and] for our civil privilege of choosing our own form of Government Almighty God for the A and religious liberty.” ferred to God. Although the 1902 constitution also contained a reference to God, the 1971 ferred to God. Although the 1902 constitution a convention in 1864 of delegates form parts (and current) constitution did not. In addition, a produced Virginia West of part not were that and lines union within were that Virginia of Constitution that, among other things, abolished slavery, but it was never submitted to the from the 1830 constitution, which did not people for ratification. It borrowed the opening refer to God. 1776 constitution) expressed gratitude “to Almighty God, the Sovereign Ruler of Nations, 1776 constitution) expressed gratitude “to and the existence of ourfor the preservation of the American Union, political and reli- civil, dependence upon Him, for the continuance of gious liberties, and [it acknowledged] our those blessings . . . .” N.C. 39285-mqt_100-3 Sheet No. 75 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 75 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 76 Side A 06/19/2017 09:53:44 . . .of .of ONST ONST ONST ONST .C .C . of 1868, C EX .C LA The ma- A or “direc- ONST 277 N.C. 280 .C See LA . (“invoking 1861, pmbl. of 813 813 . of 1890, pmbl.; T ONST ONST .C “protection,” .C . of 1868, mbl. (same); V . (same); A of 1870, pmbl. LA ISS 279 ONST M ONST .C .C See A LA . (“Humbly invoking the blessing pmbl. of 1876, ) 6/12/17) 1:49 PM ONST “guidance,” .C ELETE 278 EX D . (“invoking His favor and guidance”). 1875, pmbl. of OT OT N . of 1868, pmbl. (“[W]e, the people . . . grateful to Almighty God A few that Type 1 language the version of used O . and invoking the guidance of (“acknowledging of 1865, pmbl. ONST GOD AND STATE PREAMBLES AND STATE GOD . the favor and guidance of Almighty (“invoking of 1861, pmbl. . of 1874, pmbl. (“We,the State of Arkansas, grateful the People of 276 (D . (“relying upon the protection and guidance of Al- of 1877, pmbl. . (“relying upon the protection and guidance of Al- of 1877, pmbl. .C .acknowledging, with gratitude, . . . (“We, of 1861, pmbl. the people ONST ONST LA .direction of the Great Legislator of the (“imploring the of 1868, pmbl. ONST ONST .C DOCX . . A of 1865, pmbl. (same); ONST ONST .C ONST .C .C ISS A .C .C INAL ONST .C LA A A RK ONST C -F . of 1870, pmbl. EX A A G G T .C Georgia’s 1877 preamble Georgia’s 1877 was “To perpetuate the typical: UTTLE LA ONST .See .See .See .See 281 &T .C 281. S.C. 276. Althoughand Mississippi Texas adopted constitutions with Type 1 preambles 277 280 278 279 When preambles adopted eventually they God, to referring the M K MITH MITH ENN C Y to Almighty God for the privilege of choosing our own form of Government; for our civil to Almighty God for the privilege of choosing its blessings, and secure the same to our and religious liberty; and desiring to perpetuate this Constitution.”); F selves and posterity; do ordain and establish principles of free government,principles of free to all, preserve peace, insure justice promoteand transmit the citizen, happiness of the interest and to pos- God”); A pmbl. (“We the people . . . grateful to Almighty God for our freedom, . . . do establish this . do . . grateful to Almighty God for our freedom, . . . pmbl. (“We the people constitution.”); M mighty God”). mighty God”); G 1870, pmbl. (same); A had become commonplace expressing of the country, in other parts gratitude to God right to self-government. for liberty or the the favor and guidance of Almighty God”); V the favor and guidance of Almighty God”); during this era—Texas during this era—they adopted three such constitutions both later adopted constitutions with Type 2 preambles. 1868, pmbl. (“acknowledging our dependence upon Him for the continuance of those bless- 1868, pmbl. (“acknowledging our dependence upon Him for the continuance of those ings to us and our posterity”); T of Almighty God”). of 1876, pmbl. Louisiana later adopted a constitution with a Type 2 preamble, although it Louisiana later of 1876, pmbl. that used Type 1 language. South Carolina re- then replaced that constitution with one Type 1 preamble. Virginia later adopted a consti- placed its Type 2 preamble in 1896 with a tution that eliminated the preamble to God. and thus the reference (“invoking His favor and guidance”). of 1875, pmbl. T 2017] 2S the grace of God, in permitting us to make choice of our form of government, do or- do government, of form our of choice make to us permitting in God, of grace the Texas adopted three such constitutions.”). during this era—consistent. with its 1845 . . dain God’s “grace and beneficence”—andconstitution, which expressed gratitude for Arkansas adopted two. Almighty God, the author of all good government”); A Almighty God, the author of all good government”); jority, however, followed Confederate constitution by the lead of the invoking God’s “favor,” for the free exercise of the right to choose our own form of government, do ordain this Con- for the free exercise of the right to choose stitution.”); Universe”). Two of the southern constitutions adopted between 1861 and 1877 instead used Universe”). Two of the southern constitutions adopted between 1861 and 1877 instead language similar to that in the Type 2 preambles adopted in the 1840s. tion.” southern states tended to use one of two states tended southern formulations, basic verbal somethough ra- one approach settling on states had difficulty of the the other. ther than 39285-mqt_100-3 Sheet No. 76 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 76 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 76 Side B 06/19/2017 09:53:44 M K C Y 286 [100:757 [100:757 and one of them and one (Lou- 283 e of the South was consid- Instead, the southern states’ Instead, the southern states’ 285 notion that its people were part attention to the particular char- attention to the s also helps to explain why most ) 6/12/17) 1:49 PM in this era in other parts of the country, there in this era in other ELETE D as it had become the norm elsewhere. OT OT By the end of Reconstruction, only twoend of Reconstruction, By the former N MARQUETTE LAW REVIEW MARQUETTE 284 O 282 (D . of 1877, pmbl. DOCX . notes 237–38 and accompanying text. notes 257–62 and accompanying text. INAL ONST -F .C A UTTLE . See supra . See supra Four of the five newlyadmitted states adopted constitutions &T 287 284. 1898, Louisiana adopted a constitution with a Type 1 preamble, which it retains In 285 283. Louisiana men- adopted three such constitutions during this era, none of which 286 287. Maryland, Missouri, West each Virginia, and Nebraska adopted two constitutions 282. G The pace of constitution-making outsid The southern commitmentthe idea to of the of the “Spirituality It appears that mostIt appears that states in this era borrowedthe southern of MITH MITH confederate states (Louisiana and Tennessee) had not adopted consti- had not adopted and Tennessee) states (Louisiana confederate referred to Godtutions that in the preambles, tioned God in the preamble. (in slightly modified form) today. Virginia later adopted a constitution that omitted the preamble and thus the reference to God. during this era. 814 the enjoymentterity we, of liberty, the upon relying Georgia, of people establish do ordain and of Almighty and guidance the protection God, this Constitution[.]” 2S erably slower that were this era. Nine in states not part of the confederacy—including were five states that admitted between to the union 1861 and 1877—collectively thirteen constitutions during this adopted era. isiana) did so in 1879. isiana) did so in acter of the religious claimsacter of the religious language. As entailed by the chosen with adopted the constitutions era. Church” did not waver during this preamble language from constitution or from the Confederate other usually withstates’ constitutions, little can infer at this point fromis little that one the choice of Type 1 or Type 2 preambles. The important point, is that for present purposes, Godthe practice of invoking in the preamble eventually became the norm South, just in the referring to God in their preamblesdecision to adopt the practice of is explained, we believe, by the increasing the South of the acceptance in idea that southerners are members of one national, holy community. Whereas many this Puritan idea, the southerners had earlier rejected end of the debate over slavery—andthe related debate over uniformi- ty—softened to the southern resistance of a broader national community. Thi did not adopt preamblesof the states of the confederacy with refer- Warences to God until after the Civil had ended. 39285-mqt_100-3 Sheet No. 76 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 76 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 77 Side A 06/19/2017 09:53:44 290 . of 1866, It was note 290, at In addi- In 289 ONST 291 ONSTITUTIONAL .C C supra , EB 16, (1872) 1872, at 28 292 OURNAL 815 815 J ANUARY OURNAL OF 293 ,J J IRGINIA . of 1872, art. I., § 1. . of 1872, art. I., § 1. See V . N of 1861, pmbl.; IRGINIA constitutions without much re- opted constitutions that did not opted constitutions V EST ONST ONST .C W EST West Virginia, new the fifth state, A .C V 288 ,W AN contained similar language. W. God original constitution. in its ) 6/12/17) 1:49 PM did not refer to Goddid not in the preamble. ] (comments of Mr. Hagans) (“We the people of the See reprinted in ELETE D HARLESTON OT OT C OURNAL J N O GOD AND STATE PREAMBLES AND STATE GOD (D . K of 1876, pmbl.; . of 1863, pmbl. IRGINIA . of 1874, pmbl. DOCX . . of 1864, pmbl. ONST V ONST .C .C INAL SSEMBLED AT ONST EST A -F A ONST V .C OLO .C A UTTLE Convention Doc. No. 24, EV &T See 290. West adopted two constitutions during this era, but neither referred to Virginia 288. C 289. W. 292. Missouri’s but both original constitution, adopted in 1821, did not refer to God, 293. P 291. Maryland with preambles that used the adopted constitutions in 1864 and 1867 Pennsylvania’s 1874 constitution replaced an earlier constitution replaced Pennsylvania’s 1874 constitution As wasera the states in South, it appears that in this the case in the M K MITH MITH ONVENTION C Y did not include a reference to a reference did not include [hereinafter W tion, two states that previously had ad preamblesrefer to God adopted that mentioned God. the only state that had not been part of the confederacy that adopted a the confederacy been part of state that had not the only that in this era constitution C 2017] with preamblesto God. referring their preambles to God in Two references that already had states that adopted new constitutions 2S God. Early in the proceedings at the 1872 WestGod. Early in the proceedings at the 1872 Virginia convention, one of the delegates language. proposed a preamble with Type 2 that did not mention God in the preamble. The 1874 preamble was similar to the preambles that many southern states adopted during this pmbl.; N other parts of the country tended simplyother parts of the from to borrow language or other states’ their prior constitutions gard to the implications to God. But at of the particular references language adopted was of Pennsylvania, the particular least in the case it represented a compromisesignificant because between those who wantedJesus Christ and to declare the sovereignty of the constitution those who all. preferred no reference to God at State of West Virginia, grateful to Almighty God for our freedom, in order to secure its blessings, and invoking His wisdom guidance, do establish this Constitution.”). for future include much detail, but the committee charged The journal of the proceedings does not did not propose a preamble, but rather pro- with drafting language for the Bill of Rights section of the first article) that did not refer to posed introductory language (for the first God. reference to God that it had used in its 1851 constitution. in Illinois adopted a constitution 1870 with a preamble that was identical to its 1848 constitution. constitutions that Missouri adopted between 1861 and 1877 referred to God. Pennsylvania, which had adopted constitutions in 1790 and 1838 that did not refer to God in the preamble, adopted a constitution in 1874 with such a reference. 419 (“The State of West Virginia is, and shall remain one of the United States of America. 419 (“The State of West and shall remain one of the United States of America. Virginia is, and the laws and treaties made in pursu- The Constitution of the United States of America, the land.”). The convention ultimately adopted ance thereof, shall be the supreme law of the committee’s proposed language. 39285-mqt_100-3 Sheet No. 77 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 77 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 77 Side B 06/19/2017 09:53:44 92 M K C Y ONVENTION C ENNSYLVANIA ENNSYLVANIA EBATES OF THE ONVENTION TO EBATES OF THE ONSTITUTION OF William Bentley C ENNSYLVANIA . L. 709, 719 (1994) C P 2 D UB note 295, at 385, 395, ]; 5 D See also J. P The revised pro- accord 412 (1873) [hereinafter 2 note 296, at 228). 296 supra 3, 50, 142, 202 (1873) [here- , EBATES OF THE [100:757 [100:757 EBATES MEND THE IDENER D A , supra OURNAL OF THE ONSTITUTION OF , 3 W OURNAL C 1 J J EBATES ENNSYLVANIA 588 (1873) [hereinafter 6 P D P 75 (1873) [hereinafter 1 P ENNSYLVANIA accord P ain and establish this Constitutionain and establish ]; e Island, Newe Island, Illinois Jersey, and ENNSYLVANIA note 295, at 424, 539; ONVENTION TO MEND THE note 295, at 499 (comments of Mr. MacConnell) C A The original proposal was proposal The original similar to ENNSYLVANIA EBATES 294 ) 6/12/17) 1:49 PM supra D supra , , ENNSYLVANIA ENNSYLVANIA ENNSYLVANIA P ]; 1 P ELETE P ONSTITUTION OF D ONSTITUTION OF C The Committee the Declaration on of Rights C OT OT OURNAL OURNAL N 295 MARQUETTE LAW REVIEW MARQUETTE 297 J J EBATES O D ONVENTION TO EBATES OF THE (D ]. When Mr. MacConnell presented the Committee’s report about C ENNSYLVANIA DOCX . MEND THE , 3 D MEND THE A ONSTITUTION OF EBATES A 42 (1873) [hereinafter 3 P C D INAL ONSTITUTION OF -F C ENNSYLVANIA ENNSYLVANIA (“We, grateful to Almighty people of the Commonwealth of Pennsylvania, the See, e.g. ENNSYLVANIA UTTLE Almighty God, the Creator of the Universe, for the civil, religious and Almighty God, the Creator of the Universe, vouchsafed us to enjoy, and political liberty which has been so long upon our endeavors to secure looking to the same source for blessings do ordain and estab- and transmit the same to succeeding generations, lish this Constitution for the State of Pennsylvania. ]. ]. .Id. EBATES OF THE &T MEND THE The Religion Clauses of the Pennsylvania Constitution 296. P 1 294 295. Resolved, the people of the State of Pennsylvania, grateful to That we, 297. P 1 A 1 D MITH MITH MEND THE EBATES ONVENTION TO ONVENTION TO ENNSYLVANIA ENNSYLVANIA OURNAL for its government[.]” posal provided, “We, of the Commonwealth the people posal provided, of Pennsylva- humbly the sovereignty of God, and nia, recognizing invoking His future destiny, ord guidance in our (acknowledging the petitions and noting that the committee’s proposed preamble con- (acknowledging the petitions and noting God, and a humble invocation of His guidance in tained an “acknowledgment of Almighty that “the Committee on the Declaration of Rights our future destiny,” and thus requesting the subject”). During the Convention, the be discharged from the further consideration of for delegates received many petitions “asking the recognition in the Constitution of Al- religion.” 6 D mighty God and the obligation of the Christian 438, 443, 456–58, 481, 484, 487, 488, 506, 512, 517, 523, 541, 580, 658. 438, 443, 456–58, 481, 484, 487, 488, 506, 512, its proposed language, he reported that another delegate (Colonel Hopkins) had been the its proposed language, he reported that another delegate (Colonel Hopkins) had inafter 5 P TO C C A J D P 816 to God gratitude expressed it not only era; also but for liberty, “hum- Hisbly invok[ed] guidance.” 2S then modified demands the reflect the proposal to the many of peti- Convention to embodytions “asking the in the Constitution an acknowledgment of Almighty God as the ultimatein civil gov- authority ernment, Christ as of the Lord Jesus the Ruler of Nations, of the and Bible as the supreme of righteous law.” standard (noting that “a widespread campaign by all or most counties of the Commonwealth peti- (noting that “a widespread campaign by all or most counties of the Commonwealth tioned the convention to adopt a provision in the constitution recognizing God as ‘the foundation of the State’”) (citing 3 P P adopted in the 1840s. adopted the Type 2 preamblesthe Type that Rhod (1873) [hereinafter 1 P God for the blessings of civil and religious liberty, and humbly invoking His guidance, do God for the blessings of civil and religious ordain and establish this Constitution.”). See Ball, 39285-mqt_100-3 Sheet No. 77 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 77 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 78 Side A 06/19/2017 09:53:44 ar- 300 They 299 ONSTITUTION C Indeed, some of ]. 302 MEND THE A 817 817 EBATES D Finally, opponents of the refer- ONVENTION TO C 303 Godexplicitly noted that the peti- accommodate the convention asked ENNSYLVANIA note 297, at 758–59 (comments of Charles Buck- note 297, at 758–59 (comments of Charles stitution, both because it was both because stitution, not “in and that it was step from a short this ) 6/12/17) 1:49 PM 301 supra , ELETE EBATES OF THE D OT OT EBATES N D O GOD AND STATE PREAMBLES AND STATE GOD and because it was and because to effectively inappropriate (D 298 DOCX . 647 (1873) [hereinafter 4 P at 763 (comments of John Campbell) (arguing that the reference to God at 763 (comments of John Campbell) (arguing INAL at 763 (comments of Mr. Campbell) (“We all either believe in God, or should -F (comments of Mr. asks no aid from human govern- Broomall) (“Christianity at 759–60 (comments of Mr.for this reason, and after the Broomall) (“It was ENNSYLVANIA at 759–60 (comments of Mr. the convention should not Broomall) (stating that at 767–68 (comments of David Craig). id. UTTLE If you may today disfranchise any man because he does not believe in the existence of a God, tomorrow you may disfranchise a man because he does not believe in the plenary inspiration of the Scriptures, and the next day because he does not believe in the deity of Jesus Christ. This is the logical conclusion to which this kind of legislation brings us. .Id. .Id. .Id. .Id. . See id. .Id. &T 299 298. P 4 300 301 302 303 There wasThere Op- language. the proposed over debate considerable ENNSYLVANIA M K at 767–68 (comments of David Craig). P MITH MITH C Y alew) (stating that the proposal “reads very much as if we were paying a compliment to the alew) (stating that the proposal “reads very Supreme Being by recognizing His existence”). ponents of the reference to God—and of the reference ponents rec- the language in particular of God”—contended “the sovereignty ognizing such a reference that con place in the state’s had no very good taste” very good chair of the committee, but had died before its deliberations had been completed. Colonel chair of the committee, but had died before humblyHopkins had proposed the language about invoking the guidance of God, and the in to the preamble as a tribute to Col. Hop- committee concluded that it should be worked kins, as his “last public act.” 4 D 2017] 2S be willing “to submit to a majority of ballots the question of the existence and attributes or be willing “to submit to a majority of ballots the Deity”); in God and in the religion He has revealed to us, do so, in my opinion; and if we believe there is no necessity whatever of declaring that belief in a State Constitution.”). of crushing out without being injured, but when ments; that religion can stand a great deal it is taken to the arms of he civil power, and dishonored.”). it falls degraded form one sect or set of God to state action preferring of recognition of one set of citizens) over all others. beliefs (and thus OF the opponents of the reference to the opponents of tions that the committee to sought not only to acknowledge God but “also make an acknowledgment of of the Scriptures as the supremeJesus Christ and lawto of the land, which all other laws must conform.” guing both that the delegates shouldguing both that religion from protect the corrupt- governmenting influence of submit existence of God.a popular vote the question of the for also invoked the principle of the separation of church and state, principle of the separation of also invoked the experience of centuries, that our forefathers divorced forever all church and State, and suf- experience of centuries, that our forefathers upon the consciences and the convictions of fered religion to stand where it should stand, men!”). would be “the first step . . . toward an attempt in the Constitution of the State of to insert . . . would be “the first step Pennsylvania something like sectarianism or a State religion.”); Id. 39285-mqt_100-3 Sheet No. 78 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 78 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 78 Side B 06/19/2017 09:53:44 M K 307 C Y Second, they 305 Another delegate delegate Another 309 [100:757 [100:757 that the people of the that the people at 766–67 (comments of Mr. Pat- many other states’ constitutions accord id. 308 at 759. Buckalew thus seemed primarily con- Id. ) 6/12/17) 1:49 PM ELETE D OT OT N MARQUETTE LAW REVIEW MARQUETTE O (D , and stated in response to a question that he had “no objection to , and stated in response to a question that he had id. DOCX . at 765–66 (comments of Mr. adopt this principle and Curry) (“[S]hall we INAL -F at 766–67 (comments of Mr. T. H. B. Patterson) (“Every State Constitution, with at 766–67 (comments of Mr. H. B. Patterson) T. at 758–59. It is clear from his comments, however, that Buckalew had no objec- at 758–59. It is clear from his comments, at 763 (comments of John Campbell). at 765–66 (comments of Mr. Curry); at 766–67 (comments of Mr. T. H. B. Patterson) (stating that the language was 304 UTTLE Third, supporters noted that Third, supporters id. .Id. .Id. .Id. . See id. .Id. .Id. &T 306 308 309 304 305 306 307 Supporters of the committee’sSupporters of the to God proposed language referring Charles Buckalew, a former U.S. Senator who wasthe troubled by MITH MITH advanced several arguments.advanced several First, they noted state, as evidenced by the manystate, as evidenced received, petitions the convention such a reference in the constitution. strongly desired cerned with the language declaring the sovereignty of God. cerned with the language declaring the sovereignty of God. the exception of four or five, or at least thirty of the State Constitutions, contain this recogni- has met to reorganize and revise a State Consti- tion. Every Constitutional Convention that in the tution in this broad land has made this recognition if it was not already contained Constitution of the State.”). asserted that the language did not invoke a sectarian conception of conception of language did not invoke a sectarian asserted that the and who made “that God who made you rather simply but God, me.” tion to a Type 2 preamble. He praised the content of Illinois’s 1848 preamble but lamented tion to a Type 2 preamble. He praised the content of Illinois’s that it waslong, too invoking [God’s] favor for the future.” moved to amend Buckalew’s amendment“and to add the phrase Fourth, they contended that an acknowledgmentFourth, they contended of of the existence God—and God’s power,above the is behind the State and “which State”—might “check, in some and degree, the tendency to corruption the prevalent irreligion of the day.” 818 under “prospered” had the state people of the noted that to God ence the preamble which 1838 constitution, to the state’s to did not refer God, question had not silence on the constitution’s and that the prior the divinity of of a God or the existence “Christian [to doubt] led any Christ.” 2S referred to God in what they understood to be a similar fashion. theological content of the committee’s proposal, moved to replace the “to Almightyreference with gratitude Type 1 language expressing God for the blessing of civil and religious liberty.” thereby answer the prayers of tens of thousands of our constituents who through the thereby answer the prayers of tens of their petitions, to recognize God in this pream- churches have asked us time and again, by ble[?]”); designed to reflect the wishes of constituents who had submitted petitions). “is not a recognition of any religion under terson) (arguing that the proposed language heaven specifically”). 39285-mqt_100-3 Sheet No. 78 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 78 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 79 Side A 06/19/2017 09:53:44 2 7 2 311 312 see 315 see note supra , 251–52 see also supra , EBATES ENNSYLVANIA D P The conven- EBATES 313 D ENNSYLVANIA P at 770. Id. 819 819 ENNSYLVANIA ONSTITUTION OF note 313, at 239, 251–54. C ENNSYLVANIA supra , ONSTITUTION OF C MEND THE EBATES effectively converting the proposal the proposal converting effectively ] (comments of Mr. the Purviance) (reminding A note 313, at 252 (comments of Mr. Corson) D note 296, at 633–34 (comments of Mr. Purviance) 310 note 297, at 770; 5 P viewing ultimately the adopted lan- movement to again proposed language . It thus deleted the reference to God’s “sovereign- supra Id 314 EBATES ) 6/12/17) 1:49 PM MEND THE supra , D supra , A ELETE note 297, at 617–21; appropriations to churches, note 297, at 617–21; appropriations to D note 296, at 561–67; 7 P note 295, at 801–02; and qualifications for office holders, 5 note 295, at 801–02; and qualifications for note 297, at 678–79; qualifications for witnesses in court, 1 note 297, at 678–79; qualifications for witnesses EBATES OT OT ENNSYLVANIA ONVENTION TO EBATES EBATES D N C D D O GOD AND STATE PREAMBLES AND STATE GOD supra , supra , (D , supra , supra ENNSYLVANIA DOCX . ONVENTION TO EBATES C EBATES EBATES EBATES D The delegates frequently clashed during the convention over matters con- The delegates frequently clashed during D D D INAL -F ENNSYLVANIA ENNSYLVANIA ENNSYLVANIA (comments of Mr. Hanna). at 761 (comments of Mr. amended proposal provided: “The Lamberton). The OURNAL OF THE UTTLE See id. .Id. .Id. .Id. &T 311 312 313. P 5 314. P 4 310 315. P 7 The debates at the 1873 Pennsylvania convention reveal the influ- convention reveal 1873 Pennsylvania The debates at the A “statement and exposition of the changes contained in the new Constitution of Penn- M K MITH MITH EBATES OF THE ENNSYLVANIA ENNSYLVANIA ENNSYLVANIA ENNSYLVANIA C Y ty” and the invocation of God’s guidance “in our future destiny.” people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings people of the Commonwealth of Pennsylvania, His guidance, do ordain and establish invoking of civil and religious liberty, and humbly this Constitution for its government.” guage as a fair compromise betweenchurchmen the “fastidious of the sovereignty on an assertion of God’s who supported Convention,” Earth, and the “Quakers,” who to God at all. preferred no reference delegates of the petitions and stating that his amendment his delegates of the petitions and stating that of it” and that “is a recognition or acknowledgment of His sovereignty and of His “we should also express our recognition supreme rule over this universe”). tion rejected both proposals, tion rejected both 313, at 253–55. to sylvania” drafted to accompany the document sent for ratification explained the changes “[t]he preamble is made to express the gratitude of the the preamble in Type 1 language: liber- people of the Commonwealth to Almighty God for the blessings of civil and religious ty . . . .” 2 J 1290 (1873). “acknowledge[]Ruler of the Universe”the sovereignty of the deity as “favor” as welland to invoke God’s as God’s guidance. 2017] humbly His invoking guidance,” as amended. the proposal debate over engaged in further and then One delegate moved out the amended to strike to adopt proposal and the preamble which 1838 constitution, to the mention did not God; of the petition later, supporters 2S P into a Type 2 preamble.into a Type the amendment convention approved The (1873) [hereinafter 7 P note 296, at 3, 50, 142, 202; 7 P P P (“Now we have got it in the best possible shape to suit all parties”). Mr.(“Now we have got it in the best possible Broomall, one of original language referring to God, was a the most vocal opponents of the committee’s Quaker. courts to grant divorces in cases of adultery, cerning religion, including the power of P (explaining that his proposed amendments would be “more fully expressive of the desire of (explaining that his proposed amendments have been presented to this body”); the people as shown by the petitions which D 39285-mqt_100-3 Sheet No. 79 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 79 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 79 Side B 06/19/2017 09:53:44 , N M K ’ 317 The SS C Y A EFORM R L ’ AT , N and the divinity of Je- and the [100:757 [100:757 a preambledo should how note 68 at 334–41; Jim Allison, adopt such language. adopt such language. during this era that included a supra t wanttheir constitution to con- , in asserting the ultimatein asserting the subordi- estant version of God’sestant version of reign through mmunitymoral transformation is re- eral Constitution in the constitutions and ) 6/12/17) 1:49 PM ELETE ISESTABLISHMENT D D OT OT N MARQUETTE LAW REVIEW MARQUETTE O (D ECOND S DOCX . HE ,T INAL -F REEN UTTLE a preamble refer to God to should .Id. Indeed, it was Indeed, movement of that supporters the grass-roots &T 316 316. G 317 In one sense, the NationalIn one sense, the Reform Movement represents an exag- If nothing else, the National Reform Movement, in advocating In all, between 1877, twenty 1861 and states collectively different MITH MITH who sought to convince the Pennsylvania convention to adopt such convention the Pennsylvania to convince who sought language. The movement was convinc- aggressive at the federal level, Amendments” consider proposed “Christian ing Congress to on at betweenleast four occasions none passed. 1864 and 1910, though 820 (and ultimateence the National of failure) Reform Association’s efforts language—into adopt the fed The Association was but there, too, it also active at the state level, any state conventions to failed to convince of the Second Greatgerated version Awakening’s missionary impulse. the idea of co In this version, 2S of the states—recognizing of God the authority placed with Christian triumphalism, flow not Jesus Christ. But this idea does inevitably from the Second Great Awakening, which theological imperative also asserted the of call. For some,voluntary response to the religious many, and perhaps whose beliefs derived from the Second Great Awakening, the explicit the NationalChristian references proposed by Reform Movement were uncomfortably similarstate-imposed to the belief that they had rejected. more theological claims, explicit and robust the question from shifted whether sus. to the Prot nation of other faiths so. Accordingly, the language thatso. Accordingly, the language the 1873 Pennsylvania convention chose for the preamble—which beyond many goes states’ references, by contemplatingfor God in human a continuing role affairs—in fact was something of a modest for those who wanted no reference victory to God at all, and who certainly did no God’stain a declaration of the Christian sovereignty on earth. Twenty-seven of the forty-one consti- adopted forty-one constitutions. tutions mentioned God in the preamble, the twenty and sixteen of states adopted at least one constitution http://candst.tripod.com/nra.htm [https://perma.cc/GR9N-PKRE] (last visited Apr. 24, 2017). NRA (National Reform Association) and the Christian Amendment 39285-mqt_100-3 Sheet No. 79 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 79 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 80 Side A 06/19/2017 09:53:44 821 821 Indeed, state constitu- 319 of the fourteen constitutions constitutions of the fourteen adopted new constitutions or ctive set of political or theologi- thout references to God (Ken- In addition, three states that had In addition, three states that had stitution referring to Godstitution referring dropped not refer to Godnot refer were before adopted ) 6/12/17) 1:49 PM E. 1878–Present E. 1878–Present ELETE D OT OT N O GOD AND STATE PREAMBLES AND STATE GOD (D All sixteen referred to God in their preambles. From DOCX 318 . 320 INAL All but one referred to God. (Virginia, which referred to -F 321 UTTLE &T 318. Virginia, which had a reference to God in the preamble to its 1870 constitution 319. We however, that of the forty-one preambles referring to God adopted in note, 320. this era (one in 1879 and one in 1898). Louisiana adopted two constitutions during 321. Louisiana adopted three constitutions during this era; Michigan adopted two; From adopted states collectively the present, thirty-three 1878 to Between states collectively adopted sixteen 1878 and 1900, fifteen M K MITH MITH C Y 1901 to the present, twenty con- states collectively adopted twenty-six stitutions. 2017] God. to reference embrace gradual states’ the southern of Because of to God, of referring the practice eight during this era.such a reference By the end of Reconstruction, thirty references to Godstates overall had in the preambles to their constitu- to God in their pre- states did not have any reference tions; only eight ambles in 1877. 2S that did during this era adopted of the Civil War.the end in favor of references the trend Accordingly, to God no state era. In addition, part of this in the second accelerated had adopted a con that previously forty-two constitutions. Of forty-two, those referred to God all but one in the preambles. this era, most It is clear that, by states simply borrowed preamble language from rather than seeking to other states, craft new to reflect any distin language cal commitments. Accordingly, the choice between Type 2 Type 1 and language ceased to have much significance. amendments during this era with preambles mentioning God. constitutions. tional conventions rarely engaged in the types of debates over pream-tional conventions rarely engaged the era betweenble language that characterized 1840 and 1877. But the practice of referring to God in the preamble clearly was the norm. All twelve states admitted to the union during this era adopted references to God in their original constitutions. tucky, Michigan, and West Virginia) previously adopted constitutions wipreviously adopted constitutions (and its 1902 constitution) later abandoned the reference, in its 1971 constitution. (and its 1902 constitution) later abandoned the reference, in its 1971 constitution. God for the first time in its 1902 constitution, omitted the preamble when it adopted it most recent constitution, in 1971.) this era, twenty-four used Type 1 language and seventeen used type 2 language. and the Georgia adopted three; and Virginia adopted two (the first with a reference to God, second with no such reference). 39285-mqt_100-3 Sheet No. 80 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 80 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 80 Side B 06/19/2017 09:53:44 M K 322 C Y 324 [100:757 [100:757 avowedly religious of all of the ch of its popular support by the ch of its popular preamble, which is still part of the urt, West Virginia (for the first time) e vastness of our rolling plains.” of our rolling e vastness 323 ) 6/12/17) 1:49 PM note 122, at 179–216. ELETE D OT OT supra N MARQUETTE LAW REVIEW MARQUETTE , O (D . of 1960, pmbl. In addition, the preamble “reaffirm[s]” the people’s . pmbl. DOCX 325 . ONST OUGHLIN ONST L .C INAL C .C A -F M V AW UTTLE We, the people of Hawaii, grateful for Divine Guidance, and mindful of an island State, dedicate our our Hawaiian heritage and uniqueness as the Hawaii State motto,efforts to fulfill the philosophy decreed by ‘Ua mau ke ea o ka aina i ka pono.’ We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire. We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii. . See &T 325. W. 324 322. We this a Type 1 preamble because it envisions God as creator yet considered 323. H Although the National Reform Movement,and Protestant funda- Most preambles of the the common one of used after 1900 adopted In 1960, as litigation over prayer and bible reading in schools wasIn 1960, as litigation over prayer We “guidance.” considered this a Type 2 preamble because of its reference to God’s MITH MITH mentalism more generally, had lost mu third decade of the twentieththird decade of the conservatism religious century, rebound- this revival are varied in the 1950s. The reasons for ed significantly and complex, about explained at least in part by concerns but it can be communist atheism, the emergence of secular humanism in the West, engagementand the increasing of the federal courts. verbal formulationsreferring to God. in were There only a few mean- Montana’singful variations. preamble, current ex- adopted in 1973, gratitude to Godpresses gran- of our state, the quiet beauty for “the our mountains,deur of [and] th Id. 822 Hawaii’s preamble, adopted upon admission in 1959, expresses grati- state’s “heritage and Guidance” but also notes the tude “for Divine island State.” uniqueness as an 2S collective “faith in and constant reliance upon God,” thereby suggest- collective “faith in and constant makes no other explicit claim of continuing divine involvement in human affairs. guidance, blessing, direction, or favor. Instead, it declares that the the that declares it Instead, making its way to the Supreme Co favor. or direction, moststate’s constitution, is perhaps the states’ preambles. It does not merely express gratitude to God for lib- blessing, erty, nor even (as do other Type 2 preambles) simply invoke God’s guidance, implying Divine Providence,” people enjoy that liberty “through that the people’s continued enjoyment of liberty is contingent on the sufferance of God. adopted a preamble as an amendment to its constitution, in a referendum submitted to the voters. The 39285-mqt_100-3 Sheet No. 80 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 80 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 81 Side A 06/19/2017 09:53:44 . A 327 V supra , W. See ISESTABLISHMENT D 823 823 ECOND S il government. In modern HE The journal of the state legis- of the state journal The ,T ECONSIDERED fficial acknowledgment of God, 326 R , however, of reli- as the product REEN relationship between and gov- religion ) 6/12/17) 1:49 PM REAMBLES P ELETE D HE OT OT note 132, at 19. N O GOD AND STATE PREAMBLES AND STATE GOD (D supra IV. T , DOCX . INAL ORDON -F 328 . of 1960, pmbl. UTTLE . of 1960, pmbl. note. &T ONST 327. Thein favor of the amendment was 250,984 to 102,340. popular vote 326. The “Since through Divine Providence we enjoy the blessings preamble provides: 328. For the few notable exceptions, see G The rich history of the preambles also underscores the complexity The story of the state preamblesThe story of the than the is far deeper and richer M K .C MITH MITH A ONST C Y of civil, political and religious liberty, we, the people of West Virginia, in and through the God and provisions of this Constitution, reaffirm our faith in and constant reliance upon of Westseek diligently to promote, preserve and perpetuate good government in the State Virginia for the common W. welfare, freedom and security of ourselves and our posterity.” lature, which of the preamble the language adopted forwarded and it in a referendum,to the voters the any debate about not reflect does measure approved the and the voters language, lopsided vote. in a C 2017] worshipingstate is a the ing that body. the decision not to see It is difficult gious conservatism’s era. revival in this 2S V note 68, at 91; G of using them as the basis for any strong normative claims about the proper relationship between religion and civ proponents of the view actions are constitutionally permissi- that such arguments,ble regularly advance originalist and a relying on history debates over the constitutionality of o debates over the constitutionality mere preambles of the current fifty state fact that forty-five refer to God. As we demonstrated, have to God in the history of references preamblesstate constitutional the the significant influence of reveals Second Great Awakening relation- shaping understandings of the in ship between government. religion and civil Attime the of the found- wereing, such references far from the norm, but they becameonly so because of the Second Great Awakening’sthrough the North spread and Midwest. Indeed, the preambles provide especially strong evi- movement’sdence of the rapid spread of the influence. Relatedly, they highlight the extent to which differences between the South and other parts of the country extended not only to politics and racial policy, but also to matters of religion. These observations suggest the need for much morethe effects of the Second Great Awak- careful study of ening on other aspects of the ernment, which until now has been generally neglected in the legal the legal in neglected generally now has been until ernment, which academy. 39285-mqt_100-3 Sheet No. 81 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 81 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 81 Side B 06/19/2017 09:53:44 M K C Y Elk Grove Marsh v. Cham- Marsh v. but see see also [100:757 [100:757 330 e Constitution. (Indeed, Norththe Midwest. and In eral Constitution had es- also Specifically, those sympathetic Specifically, to this ) 6/12/17) 1:49 PM ELETE D and thus is the product of an “unambiguous is the product and thus OT OT N 329 MARQUETTE LAW REVIEW MARQUETTE O (D DOCX . INAL , 463 U.S. at 792. 331 -F UTTLE . Marsh &T 331. There is a plausible originalist claim that state preambles demonstrate that the 330 329. Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014); Our evolution and development discussion of the the preambles of Originalists might also contend—and, indeed, some have—that the MITH MITH anti-establishment norm—assuming it is incorporated against the states, Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49–51 (2004) (Thomas, J., concurring in judgment) Unified Sch. Dist. v. Newdow, 542 U.S. 1, Clause strongly suggest that it is a federalism (“The text and history of the Establishment from interfering with state establishments” and provision intended to prevent Congress thus “it makes little sense to incorporate the Establishment more Clause.”)—is flexible as note that, applied to the states than it is to the federal government. The argument would the First whatever the status of acknowledgments of God at the time of the ratification of was Amendment, was an entrenched practice by 1868, when the Fourteenth Amendment on in- ratified. But such a view would be inconsistent with well-settled modern doctrine ‘are all to be enforced Rights protections corporation, which holds that “incorporated Bill of that against the States under the Fourteenth Amendment according to the same standards protect those personal rights against federal encroachment.’” McDonald v. City of Chicago, 561 U.S. 742, 765 (2010) (quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964)). bers, 463 U.S. 783, 792 (1983) (holding that practice of state legislature to open sessions with bers, 463 U.S. 783, 792 (1983) (holding that prayer did not violate Establishment Clause). tablished churches for part of that period, even though that practice tablished churches for part of that became increasingly atypical.) The practice of acknowledging God in state preambles did not begin to become the norm until the 1840s, when the influence of the Second Great Awakening finally reached across the state constitutional conventions to the state constitutions makesto the state constitutions that there is no unbro- however, clear, to the framing,ken tradition, dating of acknowledgments of God in the Asstates’ constitutions. explained above, at the time of the framing of the federal Constitution, such references were anomalous. The states that adopted preambles with remained such references outliers for the after the ratification of th first half-century whoseseveral of the states preambles referred to God in the first sev- ratification of the fed eral decades after other words, an approach that views founding-era as determi- history native should not treat the preambles as clear evidence of constitutional meaning. 824 actions. of such tradition long have measuredapproach Establishment under the constitutionality seeking to determineClause by whether practice “was a particular ac- the Framerscepted by withstood and has of time scrutiny the critical change” and political 2S and unbroken history of moreand unbroken history 200 years.” than preambles are evidence that other types of official acknowledgements 39285-mqt_100-3 Sheet No. 81 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 81 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 82 Side A 06/19/2017 09:53:44 Put more 336 These arguments 334 825 825 the founding, such as the ap- the founding, such chaplains and the issuance of chaplains and the military chaplains facilitate the pri- le for religion—and values Protestant The more of these ar- robust versions These arguments at least are subject to 333 ) 6/12/17) 1:49 PM ial acknowledgmentmonotheistic of the 335 The more The modest argu- of these versions ELETE D 332 note 52, at 131. OT OT N O GOD AND STATE PREAMBLES AND STATE GOD supra (D , , 472 U.S. at 100–05 (Rehnquist, J., dissenting); Lee v. Weisman, 505 U.S. DOCX . note 4 and accompanying text. ENNA , Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting) , McCreary ACLU, 545 U.S., 844, 885, 893–84 (2005) (Scalia, J., County v. K INAL C -F M UTTLE . See Wallace .See . See, e.g. . See supra . See, e.g. &T 335 336 334 332 333 Second, those who have made historical claims about the place of M K MITH MITH C Y dissenting). 577, 633–36 (1992) (Scalia, J., dissenting). (“[N]othing in the Establishment Clause requires government to be strictly neutral between (“[N]othing in the Establishment Clause requires government to be strictly neutral religion and irreligion . . . .”). starkly, leaders and writers in the Second Great Awakening endeav- ored to remake the founders in their own image. Notwithstanding the important differences between the religious views of the framing era Awakening,and those of the Second Great leaders of the movement to recast the framersand scholars of the later era sought as men committed to promoting a public ro in particular—as a means of transforming the community. They also sought to recast the framing United as an effort to recognize the States as God’s chosen community. 2017] permissible. are of God 2S guments claim that reverent God of the Judeo-Christian is acceptable. tradition twothere are important significant objections. First, be- differences tween preambles constitutional other prac- that refer to God and these tices. For example, legislative and vate religious exercise of those whomvate religious exercise Neither they serve. form of a claimchaplaincy indicates that the government a itself constitutes holy community. Thanksgiving proclamations may represent a closer ephemeralcase, but they are in character, unlike language that becomes entrenched in a constitutional preamble. religion in government have often relied as much on sources from the time Second Great Awakening of the as they have on those that date to because by the 1830s one of the the founding era. This is unsurprising, Awakeningcore projects of the Second Great was re-imagine to the framers Christians and the framing as devout and as a divinely guided communityblessed effort to create a holy of believers. typically point to practices that date to typically point to pointment and military of legislative Thanksgiving proclamations. ments claim or “the Almighty”invocations of “God” that public are withconsistent traditions. our 39285-mqt_100-3 Sheet No. 82 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 82 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 82 Side B 06/19/2017 09:53:44 M K C Y TATES S NITED 338 U [100:757 [100:757 ONSTITUTION OF THE C , difficult to conceive, for all our actions, found- option of the constitution, option of the constitution, d accountability; a future utter indifference, wouldutter indifference, have cre- but also of Christianity specifically. of Christianitybut also specifically. who would deliberately contend, that who would deliberately contend, ) 6/12/17) 1:49 PM ELETE D OT OT OMMENTARIES ON THE 337 N MARQUETTE LAW REVIEW MARQUETTE O ,C (D TORY DOCX S . INAL 339 -F OSEPH § 1865, at 722–23. UTTLE The promulgation of the great doctrines of religion, the of one Almightybeing, and attributes, and providence God; the responsibility to him state of rewards and punishments; the cultivation of all virtues;—thesethe personal, social, and benevolent never can be a matter of indifference in any well or- dered community. It is, indeed ed upon moral freedom an how civilized society can well any exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to of governmentdoubt, that it is the especial duty to foster, and encourage it among all the citizens and subjects. and of the amendment now under consideration, it, to the universal, sentimentthe general, if not America in was, that Christianity to receive encouragement ought from so far as was the state, not incompatible with the conscience, and the freedomprivate rights of reli- of gious worship. Probably at the timeProbably at the of the ad .Id. .Id. &T 337. J 3 338 339 Justice Story was influenced by the theological understand- clearly For example,For Commentaries in his 1833 the of Constitution on the MITH MITH On “[a]n attempt his account, to level all religions, and to make it a matter to hold all in of state policy ated universal disapprobation, if not universal indignation.” ings of the Second Great Awakening. topic of the In introducing the First Amendment’s religion clauses, he stated: United a viewJustice Story advanced States, under- of the original of the Establishmentstanding state sup- official Clause that tolerates generally, only of religion port not He declared, His view of the EstablishmentClause followed naturally from un- this derstanding: “Now, there will probably be found few persons in this, or any other Christian country, and encourage the Christian re- it was to foster unreasonable, or unjust ligion generally, as a matter of sound policy, as well as of revealed 826 2S § 1868, at 726 (1833). 39285-mqt_100-3 Sheet No. 82 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 82 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 83 Side A 06/19/2017 09:53:44 covenant is NHABITANTS OF THE NNIVERSARY OF THE 341 I your A 119–120 (1789) (empha- IRST 827 827 -F EFORE THE B IXTY S ONSTITUTION C as committed to the foundation pledge of the fulfillment ELIVERED th the understanding common at ON THE D , linked with of the birth-day 343 He urged Americans to “[l]ay up these EQUEST RATION UBILEE OF THE ) 6/12/17) 1:49 PM R citizens that “the ark of J O 342 N HE ELETE 5–6 (1837). D HEIR ,A , T T OT OT N O GOD AND STATE PREAMBLES AND STATE GOD AT DAMS DAMS , (D A A DOCX . NDEPENDENCE I UINCY UINCY INAL Q Q -F EWBURYPORT at 119–20. § 1867, at 724. N OHN OHN UTTLE the Saviour? That it formsthe Saviour? That a leading event in the pro- Decla- dispensation? Is it not that the gress of the gospel firstration of Independence organized the social com- of the Redeemer’spact on the foundation mission upon the corner stone of humanearth? That it laid govern- and gave to of Christianity, ment upon the first precepts the world irrevocable the first Is it not that, in the chain of humanIs it not that, in events, the birthday of the nation is indissolubly announced directly fromof the prophecies, Heaven at of and predicted by the greatest the birth of the Saviour years before? the Hebrew prophets six hundred 340 .Id. .Id. &T 343 340 341. J 342. J But this project to cast the framers He reprised this theme two commemorating years later in a speech Leading figures in the 1830s also pressed the view also pressed figures in the 1830s Leading the framing that M K MITH MITH ECLARATION OF OWN OF C Y the fiftieth anniversary of the inauguration of George Washingtonthe fiftieth anniversary of the inauguration as President, telling his fellow teach them to your . . . in principles, [] in your hearts, and your souls write them upon the doorplates of your houses, and upon . . . children, [and] adhere to them as to the cords of your eternal sal- . . . your gates theyvation[,]” so that for years after could celebrate “all the blessings promisedupon Mount to the children of Israel Gerizim, as the reward of obedience to the law of God.” of a Christian community was clearly that ahistorical. First, the idea the entire American society was trans- the proper object of religious formation conflicted wi would have the time of the framing belongs to the individual, whose that religion the Declaration of Independence. Your MountEba [is] the confederacy your Mountof separate state sovereignties, and Gerizim is the Consti- tution of the United States.” T D 2017] truth.” 2S sis in original). of the country and the Constitutionof the country were a holy com- efforts to create Adams, John Quincy munity, by God. in a land chosen for example, declared: 39285-mqt_100-3 Sheet No. 83 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 83 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 83 Side B 06/19/2017 09:53:44 S ’ in 7 M K in C Y ORALS OF EFFERSON M J in IFE AND L HE “T [100:757 [100:757 AND ” 6 (1827) (“My own mind is my own ESUS J nsistent with the fundamental tion was with inconsistent the unity. But those viewsunity. But repre- Indeed, perceptions of wide EASON 345 R adoption of the Constitution’s Estab- GE OF the personal moral flowed change that A ) 6/12/17) 1:49 PM HILOSOPHY OF 29 (J. Jefferson Looney ed., Princeton Univ. Press 2010) P HE 198 (J. Jefferson Looney ed., Princeton Univ. Press 2010) 198 (J. Jefferson Looney ed., Princeton Univ. ELETE ,T HE D OT OT :“T AINE N MARQUETTE LAW REVIEW MARQUETTE P EFFERSON O J EFFERSON (D J We recognize that some at the time of the framing OSPELS 346 G DOCX HOMAS . HOMAS , Letter from Thomas Jefferson to Miles King (September 26, 1814), , T T HOMAS INAL T -F UTTLE When have done away the incomprehensible jargon of the Trin- we shall one is three; when we shall itarian arithmetic, that three are one, and reared to mask from view have knocked down the artificial scaffolding, we shall have unlearned the simple structure of Jesus, when, in short, his day, every thing which has been taught since and got back to the we shall then be truly and wor- pure and simple doctrines he inculcated, thily his disciples . . . . Equally important, it was inco . See, e.g. . See, e.g. APERS OF &T 344 P APERS OF ” 403 (Dickinson W. Adams & Ruth W. Lester eds., Princeton Univ. Press 1983). P 345 344 346. (December 6, 1813), von Humboldt Letter from Thomas Jefferson to Alexander Second, the Second Great Awakening’s vision of the United States HE MITH MITH HE XTRACTS FROM THE ESUS claim Protestant evangelicalism, of that era’s which on the sal- focused and vation of the individual from that salvation. as God’s for the restoration of Christianity would have chosen place at the framing about giving politi- clashed with a widely held concern cal power to religious institutions. E J 828 God to connection from derives the in of rebirth experience a personal Con- England New some framing, the of time the at sure, be To Spirit. orthodox Calvinists and other gregationalists views retained Puritan religious comm centrality of about the 2S spectrumthe theological one end of sented only and were geograph- in Newically concentrated The view that the entire commu- England. nity was a proper object of transforma framing-era views of Unitarians Deists—including and many the of most prominent framers,James such as Madison and Thomas Jeffer- son—who understandings of God generally rejected Christian the and of human an ongoing role in the direction idea that God plays affairs. abuse of the monopoly power of the of England undoubtedly Church formed key backdrop to the the lishment Clause. (“[H]istory, I believe furnishes no example of a priest-ridden people maintaining a free civil (“[H]istory, I believe furnishes no example of a priest-ridden (“[O]ur particular principles of religion are a subject of accountability to our god alone. I (“[O]ur particular principles of religion are with mine: nor is it given to us in this life to know enquire after no man’s, and trouble none foe’s are exactly the right.”); whether your’s or mine, our friend’s or our Pickering (February 27, 1821), Letter from Thomas Jefferson to Timothy 7 T church. All national institutions of churches whether Jewish, Christian or Turkish, appear church. All national institutions of churches whether Jewish, Christian or Turkish, to terrify and enslave mankind, and monopo- to me no other than human inventions, set up lize power and profit.”). T 39285-mqt_100-3 Sheet No. 83 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 83 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 84 Side A 06/19/2017 09:53:44 ., ]; MERICA A OLL ET AL YTH OF THE M HE invoked the full invoked HRISTIAN :T C 829 829 MERICA note 348, at 201; N A supra NVENTING A , ty. In the second half of the ty. In the second Similarly,we recognize that ,I on, dating to the Revolution- on, 347 HRISTIAN lost its way. On this view, mod- C REEN MERICA erstanding of the relationship be- erstanding of the A ch attribution rarely ch attribution tion in millennialtion terms, the it calling But because those claims made about 348 ) 6/12/17) 1:49 PM in which he asserted that “nothing in the HRISTIAN NVENTING A C 350 , ELETE ,I D OT OT N REEN O GOD AND STATE PREAMBLES AND STATE GOD (D K. G NVENTING A 201 (2015) [hereinafter G note 51, at 113–14. ,I DOCX . note 347, at 15–21. INAL supra TEVEN REEN , -F S Wallace v. Jaffree supra G OUNDING ., F UTTLE UTSON .See . See &T 349 note 347, at 21–22. 347. See Wythe Jerusalem: Herman Husband’s Egalitarian Alternative Holt, The New 349 348 350. 472 U.S. 38 (1985). This move found its first legal foothold in Justice Rehnquist’s 1985 Crucially, in pressing these claims,twentieth-century evangelicals As we the Second Great Awakening have explained, sought to im- M K MITH MITH OLL ET AL ELIGIOUS C Y dissent in N R government. [T]his marks the lowest grade of ignorance, of which their civil as well as religious leaders will always avail themselves for their own purposes.”). Founders: Rebels, Radicals, and Re- to the United States Constitution, in Revolutionary formers in the Making Nation (Alfred F. Young, Gary B. Nash, & Ray Raphael, eds. of the 2010 ; H “New Jerusalem,”small only a but they constituted minority, both in and amongthe population the framers. 2017] the newly of conceived na born 2S it was common the time at (military to attribute successes or legislative) to Divine But su Providence. the founding during the Second Great Awakening Great the founding during the Second were ahistorical, later claims resting on them were similarly flawed. In their essence, late-twentieth-century claims evangelical viewed about the founding the framing through the Second Great Awakening’s already distorted lens. ary generation, that contemplated a particular relationship between government.Protestant Christianity and civil often relied on ideas that were generated or widely either spread by the Second Great Awakening. tween the political communi religion and twentieth a new century, evangelical movement revived those same claims over prayer in schools, of conflict about the founding. At a time religious education, and moralthe funding of issues closely tied to America began to reassert the idea that faith, evangelicals was founded as a Christian had simply nation, and ern changes in law, politics, and society represented a dramatic depar- ture from unbroken traditi an otherwise structure of Puritan beliefs in God’sstructure of Puritan reflected chosen land, and instead of thanksgiving for good fortune. a personal sense its later und pose on the founding Establishment Clause requires government to be strictly neutral be- supra 39285-mqt_100-3 Sheet No. 84 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 84 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 84 Side B 06/19/2017 09:53:44 M K 355 356 C Y ECOND S HE ,T REEN note 52, at 130–32. which, as we ex- as which, 353 supra , , [100:757 [100:757 Indeed, Justice Scalia 357 ENNA part on the drafting histo- part on the drafting K C several decades later, at a timeseveral decades es that Clausees that Congress prohibit Commentaries also put significant weight also put significant on the timateends through nondis- secular Rehnquist’s opinion asserted that the opinion asserted Rehnquist’s derstandings do not follow inevitably 351 ) 6/12/17) 1:49 PM ELETE D note 132, at 19–20, 66, 138; G OT OT N MARQUETTE LAW REVIEW MARQUETTE O supra note 68, at 190–99, 360–63; M (D —todemonstrate that “the Establishment Clause of , Justice Rehnquist relied in Justice Rehnquist 354 supra DOCX . , 352 , 472 U.S. at 106 (Rehnquist, J., dissenting). , 472 U.S. at 106 (Rehnquist, J., dissenting). ORDON INAL -F G Lee v. Weisman, 505 U.S. 577, 632, 646 (1992) (Scalia, J., dissenting) (relying on at 113. at 104–05. UTTLE .Id. .Id. .Id. .Id. .See . Wallace .See &T 357. McCreary County v. ACLU, 545 U.S. 844, 885 (2005) (Scalia, J., dissenting). 351 352 353 354 355 356 Rehnquist’s vision of Establishment Clause history, with its heavy MITH MITH ISESTABLISHMENT ry of the First Amendment. But he views in Joseph Story’s expressed a “longstanding American tradition of nonsectarian prayer to God at public celebrations a “longstanding American tradition of nonsectarian prayer to God at public celebrations knew that nothing, abso- . . . generally” and asserting that the “Founders of our Republic lutely nothing, is so inclined to foster among religious believers of various faiths a tolera- tion—no,an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek”). “true meaning in its his- can only be seen of the Establishment Clause describe the framers’ purported to tory,” and in adopting “intentions” that provision. deployed this history to advance an even moredeployed this history to advance robust vision of reli- his view, this history meantgion’s place in the civil order; in that government may constitutionally acknowledge with the God of reverence D and the display of the Ten Commandments. Rehnquist’s non-preferentialism followed neatly fromthe understandings of the Second Great Awakening, which emphasized a broadly specific doctrines of any particular Christian culture rather than the denomination. But those un 830 tween nor do and irreligion, religion from views commonly held at the time of the framing. 2S fromor the States legi pursuing criminatory sectarian means.” the First Amendment a well-accepted had acquired meaning” prohibiting only a “preference among religious sects or denominations.” when the “Protestant Establishment” permeated had legal as wellas political thought plained above, reflects the theological understandings of the Second reflects the theological understandings plained above, Great Awakening more any consensus view than it reflects from the time of the framing. he relied on Story’s views—and Indeed, those of Thomas his treatise Cooley, who wrote reliance on the ideas from Second Great Awakening, reappears in Jus- prayer at public school events tice Scalia’s dissents in cases involving 39285-mqt_100-3 Sheet No. 84 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 84 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 85 Side A 06/19/2017 09:53:44 360 831 831 de significant support de significant support just for individuals but for for individuals but just litical order. On this view, the which helps to determine con- en of almost all denominations all denominations en of almost d meaning does not dictate the the possibility of dynamicthe possibility of constitu- proper relationship betweenproper relationship religion But Justice Scalia invoked the legacy the legacy Scalia invoked Justice But government services, a conclusion that 358 ) 6/12/17) 1:49 PM ELETE D OT OT N O GOD AND STATE PREAMBLES AND STATE GOD (D DOCX . , 505 U.S. at 645 (Scalia, J., dissenting). INAL -F at 893–94 (asserting that “[h]istorical practices [] demonstrate that there is a at 893–94 (asserting that “[h]istorical practices 359 UTTLE .Id. .Id. . Weisman &T 358 360. For example, the Bush Administration’s faith-based initiative, which authorized 359 For others, the preambles are consistent with the view that the Es- Although the preambles provi thus do not That said, the possibility of evolve M K MITH MITH C Y and government, those who accept tional meaning must grapple with of the pervasive the significance in the state preambles.references to God After if post-ratification all, changes can becomecultural and legal constitu- the basis for evolving tional meaning, argument is a plausible then there the preambles that about the appropriate understandings a change in represent just such relationship between the po religion and preambles—andof the Second Great Awaken- the understandings ing—are simply of our inheritance, part stitutional meaning today. betweenspecific outlines of the relationship religion and government. For some, the overwhelming frequency of references to God in state preambles mightought to be fewer suggest that there limits re- on the lationship between and the state. On this view, religion an embrace of Great Awakeningthe understandings of the Second would justify official acknowledgment involvement of God and greater religious in- by stitutions in the provision of flows naturally from the movement’s belief in the importance of religion in both personal and communal transformation. for originalist claims about the 2017] the Judeo-Christian tradition. Great Awakening,of the Second he as- the founding, when and not men “[r]eligious serted that and wom 2S acknowledge it necessary to have felt of God the blessing and beseech in the they believe because as individuals, and not just as a people, ‘protection of divine . . . not Providence,’ societies.” government aid for religious social-service providers, proceeded in large part from the government aid for religious social-service providers, proceeded in large part premise that transformative religious experiences can lead to personal moral growth, which of then transforms the whole community. This premise derives from core understandings the Second Great Awakening. distance between the acknowledgment of a single Creator and the establishment of a reli- a single Creator and the establishment distance between the acknowledgment of religions in the United States, Christianity, gion,” in part because the “three most popular Judaism, and Islam—which combined account for 97.7% of all believers—are monotheis- tic”). 39285-mqt_100-3 Sheet No. 85 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 85 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 85 Side B 06/19/2017 09:53:44 M K LAN C Y TATE EOPLE S P ELIGIOUS ,R 1–18 (2005); G. A NTERPRETING ,I YSTEM S [100:757 [100:757 OVERNMENT G ARDNER EDERAL F A. G unds. The constitutionality of nt officials in religious institu- ECULAR In other contexts, such religious In other contexts, such religious religious identity through prose- ,S preamble’s function, the state pre- , and the legal authority of a secular , and the legal authority it is deeply religious. a strong religious identity. In addi- religious identity. a strong basic understanding of the functions basic understanding AMES ONCLUSION UTTLE UNCTION IN A ) 6/12/17) 1:49 PM F W. T V. C V. ELETE 361 D OBERT OT OT N MARQUETTE LAW REVIEW MARQUETTE O &R Accordingly, many legal scholars likely will be (D 362 UPU DOCX URISPRUDENCE OF . C. L INAL :AJ RA -F I UTTLE .See &T 361 362. For some exceptions, see J On this view of a constitutional At a minimum, the preambles imply nothing about the permissibil- State constitutions generally have been neglected in contemporaryState constitutions generally have MITH MITH ONSTITUTIONS ambles support a more do not necessarily between robust relationship religion and government. Of of Tennessee or Or- course, if the people egon today adopted a preamble that expressed gratitude to God, we would the Establishment be hard pressed to argue that the act violates such references, even though it of Clause. The long-standing tradition renders the practice permis-does not date to the founding, effectively that approval to other formssible. But one need not extend of governmental acknowledgment of God. expression risks entangling governme tions or marginalizing those who do not share the beliefs expressed by the government. ity of government to which aid to religious institutions, or the extent those institutions may express their lytizing while receiving government f these practices cannot be resolved simplythese practices cannot be resolved by noting that most of the state preambles refer to God. Instead, the preambles simply reinforce a widely known, albeit slowly changing, fact about that the American polity—that, speaking, statistically C and limitations of constitutional preambles. Preambles are statements than sources of gov- and inspiration, rather of the people’s aspiration ernment’s authority. Put more simply, preambles legal ef- do not have reflects the importantfect. This status between distinction of the voice on the one hand a religious people, government, other. on the 832 tablishment contemplates Clause a firmerbetween separation religion which we with are sympathetic,and government. this view, On the preambles merely of the Ameri-that a large percentage reflect the fact have long maintainedcan people normativetion to a commitment to somechurch-state degree of sepa- approach rests upon a this ration, 2S legal scholarship. 3–4 (2014). 39285-mqt_100-3 Sheet No. 85 Side B 06/19/2017 09:53:44 B 06/19/2017 No. 85 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 86 Side A 06/19/2017 09:53:44 Two Cheers nowledgments of 833 833 sing them. At bottom, howev- 1–27 (1998); Erwin Chemerinksy, st resolved by considering the char- st resolved by considering . 1695, 1697, 1709 (2010). EV ) 6/12/17) 1:49 PM st majority expressly constitutions of state .L.R ELETE permissibility of official ack ONSTITUTIONS D TAN C OT OT N O GOD AND STATE PREAMBLES AND STATE GOD , 62 S TATE (D S DOCX . INAL -F UTTLE NDERSTANDING &T ,U The gradual development of this practice complicates both M K MITH MITH ARR C Y is a statement Viewed of inspiration and aspiration. this way, religious language in a preamble, however common teaches us the practice, scope of governmentvery little about the appropriate power to support or endorse religion. for State Constitutional Law T acter and function of constitutional preambles. As of constitutional acter and function the voice of the an exercise of governmentalpeople, rather than authority, a preamble er, wethink that this dispute is be 2017] the va learn that to surprised God in their preambles.refer to As we have demonstrated, the story preamblesof the mere than this considerably richer is statistic. Second Great Awakening—yet energy of the the evangelical Through academy—preamblesphenomenonanother by the legal understudied referring to God spread from the Northeast to the Midwest and, eventually, to the South. originalist claims for the religion and claims non-originalist oppo 2S 39285-mqt_100-3 Sheet No. 86 Side A 06/19/2017 09:53:44 A 06/19/2017 No. 86 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 86 Side B 06/19/2017 09:53:44 M K C Y * * * * * *

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