de•novo

CARDOZO LAW REVIEW

BLUSHING OUR WAY PAST HISTORY

Seth Barrett Tillman*

Legal academics and the public are fascinated by both

constitutional text and the processes by which it is
interpreted. The precise role for legal academics in the
interpretation of such charters is controverted. Doctrine and
case law as established by the courts remain the core of
academic legal discourse. Case law is, after all, the object
about which doctrine is based, built, and extended. But the
interpretation of constitutional text through case law comes
with costs—it seems to lack democratic legitimacy, and where
unconnected to text and history, it has a tendency to fence out
(even the well-educated) public. On the other hand, when
legal academics shift to text and history, their work gains
populist credentials, but, at that point, the legal academic
risks his privileged position. For the legal academic has no
monopoly, or even highly developed expertise, with regard to
textual exegesis or the best use of historical materials. In
light of those attendant risks, I want to praise Professor
Geoffrey R. Stone for taking on the role of exegete and
historian in his recent publication appearing in the UCLA
Law Review.1 But that said, I find some of his specific textual
and historical claims troubling. I respond to his textual and
historical claims in detail below. This paper, however, has no
grand normative claim of its own; it is merely an effort on my
part to correct the record, and thereby to further the object
pursued first by Professor Stone: ―to know the truth about the
Framers, about what they believed, and about what they

* Seth Barrett Tillman is a career federal law clerk. The views expressed are
solely my own. While this version has been shortened, an unabridged version will
appear at: Seth Barrett Tillman, Blushing Our Way Past Historical Fact And
Fiction: A Response to Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial
Lecture and Essay, 114 PENN ST. L. REV. 391 (forthcoming 2009) (unabridged
version), available at http://ssrn.com/abstract=1333576.
1 Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L.
REV. 1 (2008).

46

Electronic copy available at: http://ssrn.com/abstract=1399661

2009 BL U S H I N G O U R W A Y P A S T H I S T O R Y 47

aspired to when they created this nation.‖2

I AN ANALYSIS OF PROFESSOR STONE’S TEXTUAL CLAIMS

In his The World of the Framers: A Christian Nation?,

Professor Stone wrote:
Indeed, it is quite striking, and certainly no accident, that
unlike the Fundamental Orders of Connecticut, the U.S.
Constitution made no reference whatsoever to God and
cited as its primary source of authority not ―the word of
God,‖ but ―We the People.‖ The stated purpose of the
Constitution was not to create a ―Government established
to God,‖ not to establish a ―Christian nation,‖ but rather to
create a secular state. The only reference to religion in the
original Constitution prohibited the use of any religious test
for holding office, and the First Amendment made clear
that there ―would be no Church of the United States.‖3
Are these claims sound? Is it ―striking‖ that the
Constitution of 1787 stylistically veered from the
Fundamental Orders of Connecticut—an instrument 150
years older than the Constitution at the time of ratification?
Is it true that the text makes ―no reference whatsoever to
God‖? Is it true that the ―only reference to religion‖ in the
original unamended text was the Religious Test Clause? To
me at least, these seem to be an unusually strong set of
(textual) claims for a law review article: claims lacking
recognition of ambiguity and contrary points of view.
The Attestation Clause. Every copy of the Constitution I
have seen since childhood ends with:
Done in Convention by the Unanimous Consent of the
States present the Seventeenth Day of September in the
Year of our Lord one thousand seven hundred and Eighty
seven and of the Independence of the United States of
America the Twelfth . . . .4
Is not that a direct textual reference to God, even if not
your God or mine, or even if you do not believe in any God at
all? I am certainly not suggesting that the presence of this
clause makes ours a Christian nation, nor am I suggesting
that even any one Framer or Ratifier thought that this clause
had a justiciable meaning that could control a live case or

2 Id. at 26.
3 Id. at 5 (footnotes omitted) (emphasis added).
4 U.S. CONST. art. VII, cl. 2 (Attestation Clause). But see id. art. V (referring,
without more, to ―the Year One thousand eight hundred and eight‖).

Electronic copy available at: http://ssrn.com/abstract=1399661

48 CA R D O Z O L A W R EV I EW D E • N O V O 2009

controversy. But in making his argument that the United

States Constitution created a ―secular‖ nation, that the text
makes ―no reference whatsoever to God,‖ Professor Stone has
simply ignored the actual text of the Constitution he seeks to
explain.
The Oaths and Affirmations Clause. Nor is this the only
such clause in the Constitution that makes some (albeit
indirect) reference to God. The Article VI Oaths or
Affirmations Clause mandated that all future federal and
state legislators and certain officers take an oath or
affirmation to support the Constitution.5 What is the
difference between an oath and affirmation? The consensus
view—and as far as I know the universal view—is that the
former is taken in God’s name, but the latter is not.6 The
purpose of the clause—according to the standard narrative—
was to permit Quakers and others having ―a religious or other
conscientious objection to oath-taking‖ to also hold public
office. The purpose is one of ―inclusiveness and tolerance,‖7
but it is also a textual reference to God in our public charter—
albeit an indirect one.
The Sundays Excepted Clause. Another clause that might
interest us is the Sundays Excepted Clause, which provides:
―If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to
him, the Same shall be a Law . . . .‖8 Does this clause
establish any specific or named religion? No. Does it
establish a particular church? No. But if the intent of the
Founders or Ratifiers had been ―to create‖ no more and no less
than ―a secular state,‖9 then ought not Professor Stone tell us
why this clause was included in the Constitution, and thereby
entrenched against mundane democratic action? One wonders
what purpose or purposes Professor Stone believes this clause
was meant to serve.
The Religious Test Clause. Additionally, I note that
Professor Stone wrote that the Religious Test Clause prohibits
―the use of any religious test for holding office.‖ I do not mean
to quibble, but his position is not quite right—or, at the very
least, his position is not the only possible understanding of the

5 See U.S. CONST. art. VI, cl. 3 (―Oath or Affirmation‖); see also id. art. I, § 3, cl. 6
(mandating that Senators adjudicate impeachments ―on Oath or Affirmation‖); cf. id.
art. II, § 1, cl. 8 (mandating that the President ―swear (or affirm)‖ to his ―Oath or
Affirmation‖).
6 See, e.g., 67 C.J.S. Oaths and Affirmations §§ 1–3 (2008).
7 AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 301 (2006).
8 U.S. CONST. art. I, § 7, cl. 2 (emphasis added).
9 Stone, supra note 1, at 5.
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clause. Its meaning may have been more limited than

Professor Stone suggests.
The Religious Test Clause prohibits the use of any
religious test as a ―Qualification to any Office or public Trust
under the United States.‖10 In other words, textually, the
clause precludes any religious test used to qualify a person for
office—i.e., a test implemented at the time a person is elected
or appointed to office, or at the start of the term for which the
officer was elected or appointed, or at the time the officer
accepts office or takes office by removing his outgoing
predecessor. ―The question with reference to the point of time
at which [a] required qualification for office [must] exist is a
complex judicial question.‖11 If, as I suggest, qualifications
only apply at some discrete moment or point of time, then,
contra Professor Stone, once qualified, once in office, once a
person begins to hold office and thereafter, the Religious Test
Clause has no further application (as a textual matter). Now,
post-1791, such religious tests going to office-holders and
office-holding, are precluded under the aegis of the more
general First Amendment. But in 1789, in the (non-wholly
Christian, non-wholly secular) world of the Framers and
Ratifiers, under the Constitution unamended by the Bill of
Rights, it very well may have been a different story.
Does my textual critique vanquish Stone’s central point—
that the American Constitution’s ―stated purpose [was] to
create a secular state‖? No, not entirely—and it is not really
my purpose to do so. In fact, it is certainly true that the
Founders’ design lacked a national establishment.
Nevertheless, our national government continued to coexist
(comfortably) for many years with its component states, many
of which had established churches in 1787 and continued to
have them for many decades to come. Indeed, many scholars
have argued that the very purpose of the Establishment
Clause of the First Amendment was to prevent
disestablishment of state churches by the newly constituted
federal authorities.12 So if what we mean by a Christian state
is a government comparable to then-contemporaneous
England and Scotland, which each had their own established
churches, then the government of the early Republic was not a
Christian state. But if what we mean by a secular state is a
government comparable to that created by the French

10 U.S. CONST. art. VI, cl. 3 (prohibiting religious tests as a requirement to

―Qual[ify] to any Office or public Trust under the United States‖).
11 67 C.J.S. Officers and Public Employees § 24 (2008) (emphasis added).
12 See AKHIL REED AMAR, THE BILL OF RIGHTS 32 (1998).
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Revolution—a government that dated its instruments

exclusively in term of the revolutionary calendar and which
made no accommodations to its religious elements, then our
government did not take that shape either.
To me at least it seems less than fully forthcoming to
describe the government of the early Republic as Christian or
secular. It was just more complex than that. History usually
works that way. Indeed, my own experience is that text,
structure, and history rarely all line up the same way, and if
they do, it usually means that we have simply missed
something of consequence or (even worse) have drunk the
hemlock of our own ideas so deeply that we fail to see the
value in other people13 and in other peoples’ points of view.
Which takes me to my second point.
Nowhere in Professor Stone’s article is there any
discussion of the arguments or any acknowledgment, by name,
of the persons he is opposing. He asserts that someone
somewhere has made the argument that America is a
―Christian nation.‖ He cites, but does not quote, a single
article in The New York Times14 (ostensibly, not by one of his
intellectual opponents, but merely by a reporter reporting on
events) and two books,15 the more recent of which dates from
1987—over twenty years ago. In no place does he discuss
precisely who is making the arguments he has opposed, when
and in what forums they have made those arguments, and
what arguments or evidence (if any) they have marshaled on
behalf of their position. Nor does Stone discuss how their
positions might differ among one another—including different
conceptions of what it might mean to describe the United
States as a secular or Christian nation. This aspect of
Professor Stone’s presentation—one lacking acknowledgment
(much less substantial development) of opposing viewpoints—
is troubling.
Let me put it another way: when one of Professor Stone’s
purported intellectual opponents asserts that the United
States was founded as a ―Christian nation,‖ what does that

13 See, e.g., Stone, supra note 1, at 6 (―Indeed, as we shall see, many of the
leaders of the Revolutionary generation were not Christians in any traditional sense.
They were [by contrast?] broad-minded intellectuals . . . .‖).
14 See id. at 2 n.7 (citing Neela Banerjee, Clashing Over Church Ritual and Flag
Protocol at the Naval Academy, N.Y. TIMES, Mar. 8, 2008, at A9).
15 See id. at 3 n.13 (citing JERRY FALWELL, LISTEN AMERICA! 25 (1980) and TIM
LAHAYE, FAITH OF OUR FOUNDING FATHERS 29 (1987)). LaHaye’s publication is
over twenty years old. One wonders if LaHaye or Professor Stone remains wed to
everything they wrote more than twenty years ago. Of course, we cannot ask this of
Falwell; he is dead.
2009 BL U S H I N G O U R W A Y P A S T H I S T O R Y 51

person mean? Is that a claim about what an American circa

1787 expected about post-1787 demographic development? Is
it a claim about the intellectual culture circa 1787? Or, is it
an interpretive claim about the original understanding of our
founding legal and political documents (and if so, which
documents)? Stone never tells us what his opponents mean,
only that they are wrong.

II AN ANALYSIS OF PROFESSOR STONE’S CLAIMS RELATING TO

EIGHTEENTH CENTURY AMERICAN RELIGIOUS LIFE AND
UNIVERSITY CULTURE

I quote Professor Stone in full.

The Christian establishment responded with a vengeance
[to the spread of Deism]. As early as 1759, Ezra Stiles
warned that ―Deism has got such [a] Head‖ that it is
necessary to ―conquer and demolish it.‖ Thirty years later,
Timothy Dwight, the president of Yale, published a biting
antideist work, The Triumph of Infidelity, and Edward
Gibbon’s Decline and Fall of the Roman Empire was
literally put to the torch at Harvard because of ―its
uncomplimentary interpretation of early Christianity.‖ In
1784, Ethan Allen, the leader of the Green Mountain Boys
and the hero of the Battle of Ticonderoga, published a book-
length argument for deism. This work, Reason the Only
Oracle of Man, was furiously condemned by clergy.
Timothy Dwight accused Allen of championing ―Satan’s
cause,‖ Ezra Stiles charged that Allen was ―profane and
impious,‖ and the Reverend Nathan Perkins called him
―one of the wickedest men that ever walked this guilty
globe.‖16
Stone’s consistent use of terms like ―with a vengeance,‖
―warn[],‖ ―biting,‖ ―accused,‖ and ―charged‖ is puzzling. Is it
really true the clergy not only ―condemned‖ Allen’s Reason the
Only Oracle of Man, but that they did so ―furiously‖? How
does one fairly distinguish a furious condemnation from a
plain condemnation from a mere emphatic disagreement or an
honest debate over strongly held beliefs and principles? The
choice of such terms is, in most (albeit, not in all) cases,
indicative of a lack balance, of a lack of perspective. Much of
what Stone describes above was nothing more than writings
and speeches in private letters, sermons, and books. In law
review articles, traditionally, such speech is usually

16 Id. at 21 (footnotes omitted).

52 CA R D O Z O L A W R EV I EW D E • N O V O 2009

characterized in less judgmental and more neutral terms, i.e.,

as core First Amendment protected activity (although there
was, of course, no First Amendment at this time).
Indeed, if such speech is fairly characterized as
―respond[ing] with a vengeance,‖ merely because it opposes
other speech and comes next-in-time, then this Article and
every other academic disagreement will fall under the orbit of
that expression. At that point the phrase itself ceases to be
meaningful. Admittedly, not all of the statements quoted by
Stone were vanilla, even-handed, and unthreatening: Stile’s
―conquer and demolish‖ statement does seem a touch strong.
But Stiles looks much better in fuller context.
It is true with this Liberty [of accepting deistical books into
religiously-affiliated university libraries] Error may be
introduced; but turn the Tables [and see that] the
propagation of Truth may be extinguished [if you do
otherwise]. Deism has got such [a] Head in this Age of
Licentious Liberty, that it would be in vain to try to stop it
by hiding the Deistical Writings: and the only Way left to
conquer & demolish it, is to come forth into the open Field
& Dispute this matter on even Footing—the Evidences of
Revelation in my opinion are nearly as demonstrative as
Newton’s Principia, & these are the Weapons to be used. . . .
Truth & this alone being our Aim in fact, open, frank &
generous we shall avoid the very appearance of Evil.17
How is this an example of the ―establishment respond[ing]
with a vengeance‖ to the spread of Deism? If anything Stiles
overflows with a very boring almost trite excess of Brandeisian
toleration, although he clearly is attached to his own parochial
theological views. To me at least, Stone’s ―conquer and
demolish‖ snippet misses much more than it explains.
As to Stone’s specific claim that circa 1789 Gibbon’s
Decline and Fall was ―literally put to the torch at Harvard,‖ I
see no evidence that any such event ever happened. To make
his case, Stone wholly relies on Professor Kerry Walters’ 1992
publication: Rational Infidels: The American Deists.18 Walters
does not actually say ―torched,‖ he says ―burned.‖19 Walters,
in turn, relies on William Henry Channing’s The Life of
William Ellery Channing, D.D. and G. Adolf Koch’s

17 Letter from Ezra Stiles to Rector Thomas Clap (Aug. 6, 1759), in I.

WOODBRIDGE RILEY, AMERICAN PHILOSOPHY: THE EARLY SCHOOLS 217 (Dodd, Mead
& Co. 1907) (cited by Stone, supra note 1, at 21 n.155).
18 See Stone, supra note 1, at 21 & n.156 (citing KERRY WALTERS, RATIONAL
INFIDELS: THE AMERICAN DEISTS 8–9 (1992)).
19 KERRY WALTERS, RATIONAL INFIDELS: THE AMERICAN DEISTS 9 (1992).
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Republican Religion.20 But neither work supports Walters’

position. Channing merely records that ―[t]he patrons and
governors of the college made efforts to counteract the effect of
the[] [principles of the French Revolution] by exhortation, and
preaching, and prayer, as well as by the publication and
distribution of good books and pamphlets.‖21 I see no
indication of any book-burning. By contrast, Koch writes that
in 1791 ―Gibbon’s famous work was publicly banned . . . by the
President of Harvard College from that institution.‖22 Again,
no book-burning, no torching, no auto-da-fé.
Nevertheless book-banning at a university is pretty
terrible behavior (or, at least, it is when adjudged under
contemporary standards). But it seems there was no book
banning either! Koch’s only source is John Quincy Adams’
Life in a New England Town: 1787, 1788.23 Adams does not
indicate that Gibbon was banned; rather, Adams indicates
that in setting the curriculum the President preferred Millot’s
Elements of History24 to Gibbon’s Decline and Fall.25 To sum
up, in 1791 Harvard made a mundane curriculum decision; it
was recorded in a 1903 publication; in 1933 it became a book-
banning; in 1992 it became a book-burning, and in 2008
Professor Stone tells us Gibbon was ―literally put to the torch‖
at Harvard. Literally.
The constellation of facts, misunderstandings,
misstatements, exaggeration, and error hardly seems
believable. Still, there is no reason to judge Stone harshly:
such mistakes do happen. His mistake, such as it was, was to
rely on a single source, Walters, who, apparently misquoted
Koch, who expanded on Adams’ initial statement.
***
Here we come to an awkward and difficult point. Leave
aside Professors Stone, and Walters, and Koch—what about
you, the reasonable and well-informed reader. When you read

20 See id. at 9 & nn.8, 9 (citing G. ADOLF KOCH, REPUBLICAN RELIGION: THE
AMERICAN REVOLUTION AND THE CULT OF REASON 242 (H. Holt & Co. 1933) and
W.H. CHANNING, LIFE OF WILLIAM ELLERY CHANNING, D.D. 30 (Boston, American
Unitarian Association 1880)).
21 W.H. CHANNING, THE LIFE OF WILLIAM ELLERY CHANNING, D.D. 30–31
(Boston, American Unitarian Association 1880).
22 G. ADOLF KOCH, REPUBLICAN RELIGION: THE AMERICAN REVOLUTION AND THE
CULT OF REASON 290 n.6 (H. Holt & Co. 1933).
23 See id. (citing JOHN QUINCY ADAMS, LIFE IN A NEW ENGLAND TOWN: 1787,
1788—DIARY OF JOHN QUINCY ADAMS 113 n.1 (Little, Brown, and Co. 1903)).
24 ABBÉ CLAUDE FRANÇOIS XAVIER MILLOT, ELEMENTS OF ANCIENT HISTORY
(New York, Mott & Lyon 1797).
25 JOHN QUINCY ADAMS, LIFE IN A NEW ENGLAND TOWN: 1787, 1788—DIARY OF
JOHN QUINCY ADAMS 113 n.1 (Little, Brown, and Co. 1903).
54 CA R D O Z O L A W R EV I EW D E • N O V O 2009

Stone’s claim in regard to a book burning at Harvard, circa

1789, did you believe it? Try to remember your reaction, if any.
Did it seem shockingly wrong, or did you just read past his
claim as a matter of no real consequence, or did it seem
reasonably tenable to you? And if you thought the latter, what
other historical fictions (or unsupported factual claims) might
you believe in error (or absent sufficient evidence), and what
does that say about the prejudices you may harbor in relation
to people different from yourself?
Did you blush when you read Stone’s claim, or are you
blushing now?

Preferred Citation
Seth Barrett Tillman, Blushing Our Way Past History, 2009 CARDOZO L. REV. DE
NOVO 46, available at http://www.cardozolawreview.com/index.php?option=com_
content&view=article&id=106:tillman200946&catid=18:other-de-novo-articles&
Itemid=20, also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
1399661.