Linda Przybyszewski

"What the Separation-of-Church-and- State Misses: Justice Brewer and the Bible,"

David J. Brewer, who sat on the Supreme Court from 1889 to 1910, once suffered, as did many judicial conservatives of the Gilded Age Court, from being caricatured as a laissez-faire, social Darwinist. Scholars have noted several of the more likely intellectual sources of legal formalism or classicism, and have most recently begun to notice its religious basis in Protestantism. There is perhaps no other justice of the era who made more clear the religious justification for his jurisprudence than Brewer, the son of a Congregationalist missionary.

In dozens of public speeches and published articles, Brewer invoked biblical passages to justify legal logic regularly. He used the Book of Micah to justify substantive due process, the Gospel according to Matthew to argue against centralization of power, and quoted the prophet Isaiah whenever championing international arbitration. Although Brewer is infamous today for announcing from the bench that "the United States is a Christian nation," this claim would not have shocked most of his countrymen and women; religious historians argue that Protestantism was then established as a state religion informally and voluntarily. Twentieth century concerns about the need for a separation of church and state have worked to conceal this fact and its impact upon legal thought. Brewer's writings allow us to recover the assumed connection between religion and law in traditional jurisprudence at the turn of the last century.