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Published online by Cambridge University Press: 26 November 2010
In history, perspective is everything. Given that, I should make it clear from the start that I approached Mark deWolfe Howe's history of the First Amendment and church–state relations as a historian who studies constitutions and constitution-making, and more specifically as a historian of constitutions who has written about how and why we do constitutional history. Viewing it from that perspective, I must admit I have mixed feelings about this book.
1 Dale, Elizabeth, “It Makes Nothing Happen: Reason for Studying the History of Law,” Law, Culture and the Humanities 5, no. 1 (February 2009): 3CrossRefGoogle Scholar.
2 Consider, for example, Saul Cornell's evolutionary approach in his history of the Second Amendment. Cornell, , A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2008)Google Scholar (which also starts before the Founding Era, covers Founding Era debates, and then extends its analysis into the nineteenth century). This is not to deny that the issue of whether the United States has a “living constitution” or one that can only change though the amendment process is contested; obviously it is. My point is simply that there is certainly well-respected authority for the idea of a living, or evolving, constitution.
3 Howe, Mark deWolfe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 33–60Google Scholar (examining the influence of state court decisions on church property claims on theories of church and state).
4 Ibid. (responses of congregations and various local polities to issues of church property). See also ibid., 119–48 (tracing the influence of debates over a wide range of local educational issues, from racial segregation to attempts to legislate (or limit) language instruction, shaped Supreme Court reaction to church–state claims).
5 Ibid., 61–90.
6 Ibid., 91–118 (the intersection of political and religious liberties); ibid., 119–48 (the intersection of equal protection principles and religious liberties).
7 Ibid., 111–18.
8 320 U.S. 586 (1940) (Justice Stone filed the lone dissent in the case).
9 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), quoted in Howe, Garden and the Wilderness, 112. Justice Frankfurter dissented in Barnette.
10 Howe, Garden and the Wilderness, 112–13.
11 Ibid., 111, quoting Minersville School District v. Gobitis, 310 U.S. 586, 594–95 (1940).
12 West Virginia State Board of Education v. Barnette, 319 US. 624, 644 (1943) (Black, J., concurring).
13 Howe, Garden and the Wilderness, 113.
14 Ibid., 10–15 (describing the de facto establishment and the problems that have arisen from it).
15 Ibid., 4.
16 Ibid.
17 Ibid.
18 Ibid., 5.
19 Consider the objections to the uses of history by both the majority and the dissent in District of Columbia v. Heller at Balkinization from June 26, 2008, on: http://balkin.blogspot.com (see particularly the entries by Mark Graber, Sandy Levinson, and the guest posting by Jack Rakove).
20 Howe, Garden and the Wilderness, 5.
21 Consider the relatively recent case involving Bellesiles, Michael, Arming of America (New York: Knopf, 2000)Google Scholar. Report of the Investigative Committee in the Matter of Professor Michael Bellesiles, July 10, 2002, http://www.news.emory.edu/Releases/Final_Report.pdf.
22 Ibid., 3.
23 Consider, for example, Howe's discussion of Plessy v. Ferguson, and the Supreme Court's ultimate rejection of the doctrine of segregation that it espouses. Howe, Garden and the Wilderness, 125–33. There, Howe recognizes that it was changes in society that forced a rejection of precedent, not a recognition that the Court's history in Plessy was in error.
24 See Cornell, Well-Regulated Militia and the discussion of the influence of historical studies on District of Columbia v. Heller referred to in note 19.