GW Law Faculty Publications & Other Works Faculty Scholarship 2017 God and State Preambles Peter J. Smith George Washington University Law School, [email protected] Robert W. Tuttle George Washington University Law School Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons 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 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. 39285-mqt_100-3 Sheet No. 48 Side A 06/19/2017 09:53:44 2SMITH &TUTTLE-FINAL.DOCX (DO NOT DELETE) 6/12/17 1:49 PM 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 constitu- tions 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 pre- ambles give thanks to God, and many also seek God’s blessing on the state’s endeav- ors. Yet there has been no detailed assessment of the preambles’ history or signifi- cance. 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 re- store, 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 domi- nant 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 distinc- tive to limit the preambles’ relevance for other forms of official endorsement of reli- gious 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 C M Y K 39285-mqt_100-3 Sheet No. 48 Side B 06/19/2017 09:53:44 2SMITH &TUTTLE-FINAL.DOCX (DO NOT DELETE) 6/12/17 1:49 PM 758 MARQUETTE LAW REVIEW [100:757 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 re- ligious institutions to controversies over official acknowledgments of God or particular religious messages. Those who question the permis- sibility 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 genera- tions, 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 2SMITH &TUTTLE-FINAL.DOCX (DO NOT DELETE) 6/12/17 1:49 PM 2017] GOD AND STATE PREAMBLES 759 official acknowledgments of God are incompatible with our legal cul- ture. Despite their prevalence and tension with common understandings about the separation of church and state, the preambles have received very little academic attention. The occasional academic references— and cites in Supreme Court opinions—have, not surprisingly, relied on the preambles as support for the view that the federal Constitution tol- erates official acknowledgment of God.4 But there has been no de- tion of Rights with no formal preamble. See N.H. CONST.; VT.CONST.; VA.CONST. Only Or- egon and Tennessee have preambles that do not refer to God. See OR.CONST. pmbl. (“We the people of the State of Oregon to the end that Justice be established, order maintained, and liberty perpetuated, do ordain this Constitution.”); We, the delegates and representatives of the people of the state of Ten- nessee, duly elected, and in convention assembled, in pursuance of said act of Assembly have ordained and established the following Constitu- tion and form of government for this state, which we recommend to the people of Tennessee for their ratification. TENN.CONST. pmbl. 4. See, e.g., Christopher Hammons, State Constitutions, Religious Protection, and Federal- ism, 7 U. ST.THOMAS J. L. & PUB.POL’Y 226, 230–31, 235 (2013) (arguing that invocations of God are “part of a long constitutional tradition in the United States” because “an astound- ing ninety percent mention God in their preamble,” and “indicate that religion, far from vanquished in American constitutionalism, is merely another aspect of our federal govern- ment intended for state jurisdiction”); E. Duncan Getchell, Jr. & Michael H. Brady, How the Constitutions of the Thirty-Seven States in Effect When the Fourteenth Amendment Was Adopted Demonstrate that the Governmental Endorsement Test in Establishment Clause Jurisprudence is Contrary to American History and Tradition, 17 TEX.REV.L.&POL. 125, 145 (2012) (relying on state preambles to support claim that governmental endorsement of religion is consistent with the Establishment Clause); John C. Eastman, We Are a Religious People, Whose Institu- 39285-mqt_100-3 Sheet No. 49 Side A 06/19/2017 09:53:44 tions Presuppose a Supreme Being, 5 NEXUS 13, 18–20 (2000) (reviewing the preambles of sev- eral states from the time of the ratification of the federal Constitution, the ratification of the Fourteenth Amendment, and later, and arguing that such historical evidence of “a long- established and universal tradition” demonstrates that official invocation of God is constitu- tionally permissible; concluding that “[t]hese and similar constitutional acknowledgements of God remain in place to this very day, in nearly every one of the fifty states. It is a strange interpretation indeed that prohibits the very public acknowledgement of God to which so many of the state constitutions give voice.”); see also Town