At present, the writing of early American legal history tends to be dominated by cultural and social approaches. This chapter is an exegesis in intellectual legal history. Part I chronicles how central religious freedom always was in the organic laws—the town compacts, the patent of 1643/4, the charter of 1663—of colonial Rhode Island. Part II describes whether the laws enacted pursuant to those organic laws were consistent with that animating principle. Part III assesses the tensions identified in Parts I and II.

Chapter 4 discusses the political theology of the American Puritans and their influential legacy of the bi-dimensional covenant. Arriving on the shores of the New World in the 1620s and 1630s, the Puritans set about the ambitious project of creating perfect theologico-political communities. In particular, the Puritan settlements combined republican and liberal perspectives: On the one hand, the church covenant resembled in its horizontality the social contract theory, by creating a religious community with an accepted government from the free accord of its individual members. On the other hand, the vertical covenant of each church with God was modeled after the classical political contract between the people and its rulers. Thus, both the liberal apprehension of the people as a collection of equal individuals and the republican understanding of the people as of corporate whole were implemented in the colonies of New England. The chapter includes samples of the Puritan compacts, excerpts from the Articles of Confederation of the United Colonies of New England, and selections from the writings of John Winthrop, John Cotton, Roger Williams, Nathaniel Ward, John Wise, and others.

David Little presents Roger Williams as a seventeenth-century champion of conscience. Williams was expelled from Massachusetts Bay that ostensibly prized free exercise, but in fact recognized it only within narrow bands of orthodoxy. Williams thereafter prized freedom of conscience in the charter for the Providence Plantations and Rhode Island. A central principle for Williams is the distinction between the “inward” and “external” fora. The “inward forum” is the conscience, a “spiritual power” changeable by reason and persuasion. The “external forum” is “outward behavior,” meaning actions that can be coerced by the governing authority through force, in order to protect life, property, and other interests. Williams provocatively labeled coercive acts against conscience as “soul rape” and “piracy,” indicating how deeply and intimately these violated the person. Williams maintained a fruitful relationship with the Narangansett Indians, having shown them great respect, as the people who provided him refuge when he was expelled from Massachusetts Bay. He didn’t co-opt their government, and fully respected their ability to choose religion (or not), in the quiet of their own internal fora.

In the wake of 9/11, postsecularism has emerged as a capacious critical perspective that challenges the historical narrative of Enlightenment secularization. Postsecular critique observes the persistence of religion in modernity and connects its persistence to historical religion as a longer and unbroken narrative of national, cultural, and legal discourses. Drawing on intellectual history, the anthropology of religion, and New England colonial historiography, this essay argues that our contemporary understanding of the United States is deepened by rereading the nation’s puritan past from a postsecular perspective. The essay considers the travails of Roger Williams, the Antinomian Controversy, and the puritan treatment of the early Quakers as important contributions to American perspectives on the separation of church and state, the role of spirituality in the secular, and the legal and procedural application of “tolerance.”

How did European thinking about interactions with peoples of the Indies move from Christian-infidel relations to an identifiably modern form of international relations? This chapter explores the preceding question by looking at the emergence of Protestant empires during the seventeenth-century and the ascendant neo-Stoic Christian legal humanism structuring new ideas of world order and providential commerce. It considers the growing ideological displacement of the legal category of the infidel, and the associated crime of idolatry, in the political context of the Indies, East but especially West. This chapter also addresses normative ideas about the savage that developed in the infidel’s wake. Although there were important differences between the Iberian empires and the new English and Dutch empires, there were also continuities. This chapter considers those similarities between Spanish religious thinkers and representative international thinkers on natural law and the law of nations such as Alberico Gentili, Hugo Grotius, Samuel Purchas, New England Puritans, and John Locke. What does the colonization of North America look like in light of Valladolid’s legacy from a century earlier?

Already in the fourteenth century, Dante Alighieri went straight to the heart of early modern Christianity’s moral conundrum, putting into stark relief its astonishing ethical presumptions regarding salvation and condemnation. He suggests, ominously, that there is a constant potential for epistemic as well as bodily violence in Christian “charity” and notions of “justice” regarding non-Christians who reside far from Europe, although it is unclear in this canto whether the judgment that is supposed to await nonbelievers is to be meted out within the course of history or beyond it.2

John Cotton and Roger Williams were Puritan ministers in colonial New England. Cotton authored Abstract of the Laws of New England (1641), an early example of American constitutionalism drawing from both scripture and English law. Cotton’s Abstract was adopted by the New Haven colony and influential in the legal systems of Massachusetts Bay and Connecticut. Cotton also became a prominent spokesman for the laws of Massachusetts Bay, and also advocated a particular style of Congregationalism significant for development of American political and legal thought. Roger Williams, once an apprentice and recording secretary for the eminent English jurist Sir Edward Coke, served briefly as a minister in Massachusetts Bay and Plymouth colonies. Exiled for his criticism of the colonial charters and the Puritan partnership of church and state, Williams eventually founded the colony of Rhode Island and served as its President. Williams argued eloquently for religious liberty, provoking Cotton to engage him in a now-famous “Bloudy Tenant” debate published in London and read on both sides of the British Atlantic. Both Cotton and Williams were articulate representatives for opposing sides of a legal question contested as much in colonial America as today, the question of church-state relations and religious liberty.

Unlike modern originalists, Justice Joseph Story (1779–1845) endorsed the maxim that “Christianity is a part of the common law,” and he seems thus to have considered Christianity deeply entangled with the Constitution. A Harvard graduate and Massachusetts Unitarian, he did not consider the Constitution bound to any specific Christian orthodoxy. Rather, by the Revolution, American Christianity itself had become tolerant of differences in doctrine and worship, while sharing an understanding of moral duty, embodied in the common law. Thus he could at once subscribe to the proposition that Christianity is a part of the common law and decide religion cases so as to uphold the separation of church and state, protecting church property from state interference, and protecting a municipally-run school from clerical influence. On the issue of slavery, his commitments to a living faith and to a settled Constitution collided, calling into question the Christian constitutionalism to which he devoted his professional life.