By Nathan S. Chapman and Michael W. McConnell
New York: Oxford University Press, 2023.
Pp. v, 226, $24.95 hardcover.
Agreeing to Disagree, written by Nathan S. Chapman and Michael W. McConnell, charts the political, philosophical, and legal history of the First Amendment’s Establishment Clause. Contrary to the all-too-common misconception that the Establishment Clause’s function is merely to “separate church and state,” Chapman and McConnell offer a robust account of the historical evidence illuminating the original public meaning of the clause. They then explain how that meaning was lost by later generations and conclude by showing how rediscovery of the Establishment Clause’s original meaning helps clarify many of today’s most pressing religious liberty issues—from religious accommodations to school funding and church autonomy. Although written for a lay audience—and therefore perhaps a bit too familiar for those already acquainted with Chapman and McConnell’s legal scholarship—we highly recommend this accessible and thought-provoking work.
There is no question that the American public—and even many federal judges—have struggled to understand this often “contentious and misunderstood provision of the … Constitution” (p. 1). The Establishment Clause is somewhat odd, after all. Though apparently well understood in the Founding era, an “establishment of religion” is not a familiar concept to Americans today, much less laws demystifies this largely foreign concept by delving into the clause’s history, asking the all-important question: What was commonly understood by the term “establishment of religion” at the time of the clause’s writing? Chapman and McConnell provide an answer: an establishment of religion, they say, was understood to mean “the promotion and inculcation of a common set of beliefs through governmental authority” (p. 18). Beyond this basic definition, however, they acknowledge significant variety between individual establishments. As they point out, an establishment could be “narrow … or broad,” “more or less coercive,” and “tolerant or intolerant of other views” (p. 18). And the character of any particular establishment often changed over time. Indeed, as the authors also note, “the laws constituting the establishment” were often “ad hoc and unsystematic” (p. 18).
