GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2017

Status

Accepted

Abstract

Those who question the permissibility of official acknowledgments of God might be surprised to learn that the preambles of 45 of the 50 state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing on the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgments of God are incompatible with our legal culture. But the history of their adoption also does not offer clear support for those who support a robust inter-relationship between religion and civil government. References to God in state preambles were outliers for the first half-century after the ratification of the federal Constitution and did not become common until the 1840s, when the effects of the Second Great Awakening-and its commitment to the idea that religion was the province of the community and the state-influenced the process of state constitution-making. Most of the preambles are thus the product of a movement that sought to create, rather than to continue or restore, a tradition of collective acknowledgment of God in state constitutions.

The complex history of the preambles reveals the difficulty of relying on them to assert any strong normative claims about the proper relationship between religion and civil government. On the one hand, the history of the preambles does not provide obvious support to those who treat the original meaning as dispositive today, because there is no unambiguous and unbroken tradition, dating to the framing, of a dominant practice of references to God in state preambles. On the other hand, those who accept the possibility of dynamic constitutional meaning cannot readily ignore the near-uniform practice of referring to God in the preambles. At the same time, the character and function of a constitutional preamble-to state the polity's aspirations and inspirations without creating any operative law-might be sufficiently distinctive to limit the preambles' relevance for other forms of official endorsement of religious messages.

GW Paper Series

GWU Law School Public Law Research Paper No. 2018-27; GWU Legal Studies Research Paper No. 2018-27

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