The diametrically opposed outcomes of the Reformation in England and France have led historians to presume that there were significant differences in their religious situations before the Reformation that help account for that ultimate divergence. This chapter argues that any such presumption is wide of the mark. Not only were the supposed ‘preconditions’ for the success of the Reformation in England (such as Renaissance humanism, anticlericalism and church-state tension) more evident in France, but the early diffusion of Reformation teachings was swifter and more widespread there as well. Although in the second quarter of the sixteenth century the Reformation received increasing royal support in England but not in France, that early progress was insecure and was briefly reversed. Decisive divergence between the two realms in this regard began only around 1560, and in each of them the outcome might still have been different under other circumstances. The ultimate outcomes reflected the interplay of political contingency with pre-existing differences not in religious experience but in political structures and political culture, which put the English monarchy in a position to impose its will upon the English nation, but left the French monarchy less able not only to impose change but also to suppress it.

Before the Glorious Revolution attitudes towards religion’s position in the state had already helped to define the groupings coming to be known as Tories and Whigs that emerged from pro- and anti-court positions during the 1679–1681 exclusion crisis. Both groups had, however, felt threatened by James VII and II’s circumvention of Parliament and the apparent threat to the Anglican monopoly on power represented by his attempts at religious toleration. The overthrow of the monarch in 1688 made plain the power these elites now wielded through the instrument of Parliament.

The rough chronological boundaries of this chapter will be 1800 and 1921. These are defined by the structure of the United Kingdom, which itself defined the key questions in constitutional history that were discussed in this period. In 1800 the island of Ireland, all thirty-two counties, joined Great Britain, which had been formed in 1707 by the Union between Scotland and England. This was the period of the maximum extent of the United Kingdom. In 1921, following the negotiations at the end of the Irish War of Independence, the island of Ireland was partitioned, twenty-six counties forming the Irish Free State and the six remaining counties in the north-east constituting Northern Ireland. The government of Northern Ireland was subject to a scheme of devolution under the Government of Ireland Act of 1920. This had provided for both northern and southern parliaments, only the former was established.1 It remained in place until the imposition of direct rule in 1972. The nineteenth century, therefore, was an age of two unions and this had huge significance for constitutional developments.2 Not only were the Unions themselves matters of great controversy but the three kingdoms, four nations, posed immense problems in relation to questions of church and state, local government, the land and the issue of the extension of the franchise. The constitutional development of the United Kingdom of Britain and Ireland was complex. The Union state incorporated several constitutional traditions and understandings of the constitution, and a range of challenges to its integrity. The British constitution, most often seen in terms of an English constitutional tradition, was thought of by contemporaries implicitly and explicitly in a comparative context.

Protestants have played a role in shaping the political ideology of every major party in the United States and in formulating nearly every major public policy. Most American Protestants have believed that the US government should not create a religious establishment or endorse one religious denomination or sect to the exclusion of others; they have been suspicious of any religious organization’s attempt to control the minds or votes of its followers and impose its religious principles on others through public law; and they have also generally seen political activity as a moral enterprise, governed by broadly shared (Protestant-inspired) norms. These tenets of political behavior are so deeply engrained in the nation’s consciousness that their appeal has extended well beyond Protestant circles. But as uncontroversial as most of these tenets might seem to Americans today, their development was a contested part of the nation’s history.

Constantine's role in calling the Council of Nicaea has long been recognized. But theological interests have overshadowed the political side of his decision-making. In the nineteenth century scholars coined the word “Caesaropapism” for imperial interference that they saw as a threat to the purity of the Church. But the ancient state operated on a different set of principles, and a political approach fills in important blanks in our understanding of the council. By the time Constantine took control of the eastern empire he had learned that the best way to deal with conflict in the Church was to assemble the largest number of bishops possible and have them settle the problem. This is the thinking behind his decision to ask all the bishops in the empire to settle the Arian question. This is why Nicaea became known as the first ecumenical (“world-wide”) council, though in reality almost all of the bishops present came from the East. Publicly, Constantine treated the bishops at Nicaea with respect and humility, but behind the scenes he worked to bring the opposing parties into agreement. The result was the Nicene Creed, still recited (in slightly different form) by Christians today.

Through critical engagement with Karl Barth, the chapter develops a Christian theology of law responsive to Muslim critiques. It opens by challenging Barth’s negative portrayal of Islam and the rhetorical connection that he makes between National Socialism and Islam. While criticizing Barth’s views, the chapter draws from Barth’s thinking on law and politics to respond to explicit Muslim worries about Christian politics in general and Isma’il Ragi al-Faruqi’s reading of Barth more specifically. This is developed through a close reading of three essays written between 1935 and 1946 where Barth develops the groundwork for a Christologically controlled theological politics. To draw out the potential of these essays, the chapter suggests ways that Randi Rashkover’s nonpolemical reading of Barth’s theology of law in the context of Jewish-Christian debate might be extended to Islam. While Barth’s thought provides important tools for a theology of public law – particularly the non-oppositional dialectic between gospel and law and his account of the law as witness – his theology is still hampered by fundamentally anti-Islamic rhetoric and a lack of concrete attention to public laws.

Kant is critical of many of the practices of Christianity in his time. But when we appreciate the dynamic relation between rational and revealed religion as Kant conceives them, the apparent opposition becomes more questionable and raises more questions than it answers. Kant’s project in the Religion bears important affinities with the religious philosophy of Moses Mendelssohn. Mendelssohn’s philosophy of church and state and their relation involve a number of radical proposals expressive of Enlightenment religious consciousness. Mendelssohn’s concept of enlightened Judaism bears interesting comparison to Kant’s enlightened reflections on Christianity. Mendelssohn defends a form of evidentialism even more radical that Clifford’s. He also defends a conception of the freedom of religious conscience that inspires Kant’s treatment of that topic in part four of the Religion. Conscience is an important theme in Kant’s moral philosophy, which has special application to religious conscience and the freedom of conscience Kant and Mendelssohn both defend.

Secularist forces in America’s religious struggle believe that church and state should be separated as completely as possible, while their accommodationist opponents believe the state should encourage religious activity. As the accommodationist order in America’s religious struggle gave way to secularist forces during the period of church–state activism by the Warren and Burger Courts (1953–86) on issues such as school prayer, evolution, and religious exemptions, accommodationists sought refuge in weakly attenuated voucher programs. This chapter shows how accommodationists came to rely upon a child benefit theory defense in court that emphasized the benefits to the child, rather than to the school. Accommodationists saw the rise of judicial secularism as a threat to their interests. Indirect benefits channeled through parents seemed to help insulate the state from secularist opposition. But most quasi-direct vouchers of the latter half of the twentieth century were struck down as unconstitutional because they entangled the state with religious purposes.

Sixteenth-century jurist, Thomas More, developed the distinction between a Christian utopia and the political autonomy of the state. Chapter 4 recognises religion’s role in contributing to cosmopolitan ethical principles to guide political power, without becoming a justification for a political theology of the state. Section 4.1 proceeds with More’s emphasis of a common humanism that brought accommodation between temporal and spiritual sovereignty. Section 4.2 ascertains in what manner the Second Vatican Council recognised that not alone freedom but the search for the truth is central to political democracy and an open public sphere. Catholic theorists recognise a prisca theologia or a semblance of the natural law, and thereby advance in what way the expression of the political form the state takes as a basis for a common cosmopolitan humanism. Section 4.3 details Maritain’s proposed model of Church and state, and delineates Maritain’s theory of secular democratic faith, as a bridging of Catholicism with liberal democracy and human rights. This chapter concludes by enquiring if a secular democratic faith in democracy and human rights is possible today.

This chapter examines the U.S. Supreme Court’s landmark First Amendment religious liberty cases to show how the judiciary has come to terms with the disputes that arise over religious liberty. The religion clauses are often seen as upholding the concept of individual rights and defending religious liberty against religious majoritarianism. However, the U.S. Supreme Court’s interpretation of the religion clauses often belies this perception. This chapter demonstrates that the religion clauses largely epitomize majoritarianism. That is, rather than protecting religious minorities, the scope and protection of the religion clauses reflect both the trajectory of the Supreme Court’s broader constitutional rights jurisprudence, as well as the wider political landscape, both as it relates to judicial politics as well as contemporary social discourse.

The First Amendment’s religious clauses-“Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof”-were adopted, somewhat begrudgingly, as an accommodation to the concerns of vocal religious minorities. Yet they also embodied a set of shared principles about church, state, and rights of conscience that had taken firm root in revolutionary America. Whereas “free exercise” had connoted limited grants to specific groups in particular areas, the term now referred to a broad freedom to assemble and preach. There was less consensus about what an establishment of religion entailed. However, the tide had clearly turned against exclusionary privileges. If the resulting constitutional language seemed somewhat ambiguous, it nonetheless clearly encompassed both an enlarged conception of religion and an unequivocal endorsement of liberty.