A series of important lawsuits in the 1820s represented an increasingly stark division in American thinking about the role and authority of the Supreme Court in: Hunter v. Martin, Devise of Fairfax (1814), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821). That debate over federalism reflected fundamentally different views of the foundation and formation of the Constitution. For John Marshall and other nationally minded Americans, the Constitution had been established as the act of one national people, forming a national government with considerable powers. For states’ rights advocates, the Constitution was a compact of sovereign states, leaving state sovereignty largely intact except for limited and express grants of powers to the national government. Those competing views shaped how each side regarded the role and authority of the Supreme Court, and rhetoric became more extreme as nationalists feared disunion and states’ rights advocates feared the disintegration of state authority, including over slavery.

After a generation of academic critique and legal and political transformation, the field of law-and-religion stands in the midst of a crisis. Theorists in disciplines ranging from religious studies and anthropology to international relations and law have problematized the category of “religion” from a variety of perspectives. To be sure, these theorists have rarely, if ever, sought to do away with the category, either as an empirical descriptor or as a tool of analysis. Rather, they have shown its historically contingent, politically constructed, and perennially contested nature.

Post-colonial theorists, for example, have argued for the Eurocentric genealogy of “religion” and its global diffusion through colonialism and its aftermath. Legal critics have undermined the perennial protestations of theological agnosticism by courts in the West; in the United States, such criticism has revealed an implicit strand of “low-church” Protestant presuppositions.