IS THE (CHRISTIAN) DISCOVERY DOCTRINE
IS THEOLOGICAL WARRANT
A Forensic Genealogy of Religious Establishment in American Constitutional Law
THE WARRANT
When Justice Henry Billings Brown wrote in Downes v. Bidwell (1901) that American territories inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought could not receive governance according to Anglo-Saxon principles, he was not making a racial observation that happened to mention religion. He was issuing a theological warrant.
The standard reading treats "Anglo-Saxon" as racial vocabulary with religious overtones, or academic jargon with racist applications. This reading misidentifies the substrate. "Anglo-Saxon," as it operates in American constitutional jurisprudence, is the establishment's religion. It is the Discovery Doctrine translated into Protestant terms and installed as binding law. The race science served the theology. The academics institutionalized the theology. The Supreme Court established the religion—in the precise constitutional sense of that word.
This essay traces the theological warrant from its explicit origin in papal bulls, through its Protestant adaptation, into the specific jurisprudence that still governs 3.6 million American territorial residents. What emerges is not a history of racism that borrowed religious language, but a history of religious establishment that generated racial categories as instruments of its operation.
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I. THE ORIGINAL WARRANT: CHRISTIAN OVER NON-CHRISTIAN
The Discovery Doctrine begins as naked theology. Pope Nicholas V's bull Dum Diversas (1452) authorized the Portuguese crown to invade, capture, vanquish, and subdue Saracens and pagans, and to reduce their persons to perpetual slavery. Romanus Pontifex (1455) extended this warrant to all newly discovered lands. Alexander VI's Inter Caetera (1493) divided the non-Christian world between Spain and Portugal.
The operative binary: Christian peoples possessed sovereign rights. Non-Christian peoples did not. This was not incidental to the legal framework. It was the entire framework. The warrant to dispossess derived from one source: the religious status of the dispossessed.
Note what the warrant did not claim. It did not claim racial superiority—the concept had not been formulated. It did not claim civilizational advancement—the term had not been coined. It claimed religious supremacy through theological authority: the Vicar of Christ assigned dominion over peoples who did not recognize his authority. The entire apparatus rested on a religious claim about who had standing before God and who did not.
The Protestant Capture
When Protestant nations entered the colonial enterprise, they faced a structural problem. They had rejected papal authority. They could not ground their colonial claims in bulls issued by a pope they did not recognize. But they needed the substance of the warrant—the division of humanity into those who possess sovereign rights and those who do not.
Elizabeth I's response was instructive. She replied to Spain that popes had no right to grant the world—then asserted her own right to colonize non-Christian territories under royal charter. The authority changed. The operation did not. Protestant colonialism performed the same theological sorting—Christian peoples sovereign, non-Christian peoples available—while claiming a different warrant for doing so.
This is the first secularization. Not the removal of theology, but its translation into vocabulary that no longer named the pope while maintaining every structural feature of the papal claim.
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II. THE PROTESTANT REFINEMENT: ANGLO-SAXON AS THEOLOGICAL CATEGORY
The second layer of theological warrant came not from the Discovery Doctrine's original Christian/non-Christian binary but from a refinement within Christendom: the claim that Protestant peoples were uniquely capable of self-governance because Protestantism, unlike Catholicism, produced self-governing individuals.
This claim was explicitly about religious supremacy before it was anything else.
Religious Supremacy
The argument had a specific shape. The Reformation originated among Teutonic peoples because—as Josiah Strong put it in Our Country (1885), a bestseller that sold nearly 200,000 copies—it was the fire of liberty in the Saxon heart that resisted the absolutism of the Pope. Strong mapped religion onto ethnicity with precision: Celtic peoples remained Catholic, Teutonic peoples became Protestant. He concluded that most of the spiritual Christianity in the world was found among Anglo-Saxons and their converts, because this was the great missionary race.
Strong was not a racial theorist who used religious language.
He was a Congregationalist minister making a theological argument about divine election. His book identified the Anglo-Saxon race as uniquely embodying two great ideas: civil liberty and a pure spiritual Christianity. These were not separate claims. The civil liberty derived from the spiritual Christianity. The religion produced the political capacity.
The mechanism was doctrinally specific. Protestantism eliminated priestly mediation, establishing a direct individual-God relationship. This produced individuals capable of self-governance—accustomed to examining conscience without intermediary, to reading scripture without priest, to standing before God without institutional buffer. Catholicism maintained hierarchical mediation: Pope to cardinals to bishops to priests to laity. This trained obedience, not judgment. It produced peoples structurally dependent on external authority.
This was not theological preference or denominational rivalry. It was a religion of political capacity grounded in ecclesiastical structure. The claim: the kind of church you attend determines the kind of citizen you can be. Catholic ecclesiology produces subjects who require governance. Protestant ecclesiology produces citizens who can govern themselves. The political conclusion—that Catholic peoples cannot manage democratic self-rule—followed as theological necessity.
The Anti-Catholic Edge
Strong listed Catholicism first among seven perils threatening America, writing that there existed an irreconcilable difference between papal principles and the fundamental principles of free institutions. His final book attributed the undesirable characteristics of so-called Latin races to religious training.
This matters for the legal genealogy. When the Supreme Court later confronted the status of territories acquired from Spain in 1898—the Philippines, Puerto Rico, Guam—every one was predominantly Catholic, colonized by Catholic Spain, and populated by peoples formed under Catholic ecclesiology. The Court's determination that these peoples were unprepared for self-governance was a theological judgment about the effects of Catholic formation.
Senator Albert Beveridge made this explicit in his January 1900 speech advocating retention of the Philippines: he described Filipinos as a barbarous race modified by three centuries of contact with a decadent race—Spain—and attributed their incapacity specifically to three centuries of superstition in religion.
Beveridge's peroration removed all ambiguity: God has not been preparing the English-speaking and Teutonic peoples for a thousand years for nothing but vain and idle self-contemplation. He has made us the master organizers of the world to establish system where chaos reigns. He concluded by quoting Matthew 25:21. This was a sermon, delivered in the United States Senate, fourteen months before Downes v. Bidwell translated its theology into binding constitutional law.
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III. THE SEMINARIES
The conventional account treats the "Teutonic germ theory" of democracy as academic race science that borrowed religious language. This misidentifies the institutional genealogy entirely. The racial ideas did not develop at secular universities and later acquire theological overtones. They developed at Protestant seminaries, as Protestant theology about race.
The Institutions
When Herbert Baxter Adams went to Heidelberg for his PhD and John W. Burgess studied at Göttingen, Leipzig, and Berlin, they did not enter secular institutions that happened to have theological departments.
These are Protestant theological institutions that had pioneered the scientific idiom as their religious method.
Heidelberg's Faculty of Protestant Theology was one of its four founding faculties in 1386. It remains one of the most important training centers in Germany for the Protestant pastorate. Göttingen's theological faculty was established at the university's 1737 founding—a Protestant institution characterized by what scholars describe as "mild Lutheranism" typical of the Hanoverian clergy. Berlin's university was designed by Friedrich Schleiermacher, the principal intellectual architect of modern Protestantism, whose program transformed the scholarly theological enterprise into one defined in terms of science. As Thomas Albert Howard has documented, the German university was simultaneously the citadel of Wissenschaft and the birthplace of modern Protestant theological scholarship—and these were not separate functions.
Protestant theologians embraced the modern research imperative as essential preparation for ministry. The Prussian state required its ministers to be trained in state universities. The seminary was the university. The university was the seminary.
This matters because the "Teutonic germ theory" did not emerge in a secular environment that happened to use theological categories. It emerged in institutions of the Protestant reglion, where the relationship between Protestantism and political capacity was axiomatic, and where the new "scientific" idiom was itself a Protestant theological achievement—the latest form of the Reformation principle that truth must be pursued through direct encounter with evidence rather than received through institutional mediation.
The Religious Doctrine
What Adams and Burgess produced at these seminaries was not racial theory with theological overtones. It was Protestant religion about racial election, spoken in the scientific register that their Protestant institutions had strategically developed.
Adams's Germanic Origin of New England Towns (1882) traced a genealogy from Germanic tribal mark to Anglo-Saxon moot to English shire to New England town meeting to American democracy. Each link in the chain was racial. Free institutions could no more spring up without a Germanic germ than English wheat could grow without planting. But the genealogy he traced was specifically ecclesiological. The Germanic tribal assembly functioned in his account as proto-Protestant congregation: direct participation, no mediating priestly caste, individual standing before the collective. The "germ" being transmitted was the capacity for unmediated self-governance—precisely the capacity that Protestant theology attributed to the Reformation's elimination of priestly hierarchy. The chain ran from tribal assembly to parish vestry to town meeting not despite the theological content but because of it.
Burgess stated the doctrine without qualification: the Teutonic religion endowed its people with political capacity, their mission was the civilization of mankind, and they must never surrender the balance of power to peoples lacking this endowment.
A black skin, he wrote, meant membership in a race that had never of itself subjected passion to reason. Barbaric races, if incapable of development, could be swept away. This was not an academic making racial observations that happened to carry theological freight. This was a man trained at Protestant theological institutions pronouncing a doctrine of election—which peoples God had chosen for political vocation, and which He had not—under the "scientific" vocabulary those institutions had taught him to speak.
The Pipeline
Adams co-founded the American Historical Association (1884). He trained Woodrow Wilson (PhD Hopkins 1886), Frederick Jackson Turner, and hundreds of others who carried this theological framework—its religious undercover of "scientific" race theory vestments—into every major American university. Burgess trained Theodore Roosevelt at Columbia. The Dunning School, which portrayed Black Reconstruction as catastrophic and the Ku Klux Klan as restorative, grew from Burgess's seminar. Edward Augustus Freeman at Oxford provided the British anchor.
The university system did not replace the seminary. The university system is the Protestant seminary in its next form. The same religious institutions that trained Protestant ministers now trained Protestant scholars. The same religious assumptions about election, capacity, and divine vocation that organized homiletics now organized historical "science." The "secularization" of the German seminary was not the removal of religion. It was the removal of theology's name while retaining theology's entire operation.
The race science was not the vestment covering the theology. The race science is the religion—the latest iteration of a Protestant doctrine of election, produced at Protestant institutions, by scholars formed in Protestant theological environments, using methods that were themselves Protestant theological achievements. It could not stop being theology, because the institutions that produced it were theological to their foundations.
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IV. THE ESTABLISHMENT: RELIGION AS BINDING LAW
The Insular Cases (1901–1922) represent the moment when this religion achieved what the First Amendment expressly prohibits: legal establishment. Not establishment of a named denomination, but establishment of a theological framework—the [Anglo-Saxon] Protestant capacity doctrine—as constitutional law governing millions of people.
Downes v. Bidwell (1901)
Justice Brown—who had authored Plessy v. Ferguson five years earlier—held that territories inhabited by alien races, differing from us in religion, could not receive governance according to Anglo-Saxon principles. He asserted the existence of certain principles of natural justice inherent in the Anglo-Saxon character that needed no expression in constitutions or statutes to give them effect. He asked whether it was safe to confer the bestowal of citizenship on those absolutely unfit to receive it.
Justice White—a former Confederate—coined the doctrine of "unincorporated territory": a place belonging to but not part of the United States. Foreign in a domestic sense.
Read the theological substrate. Alien races, differing from us in religion. The religion named. Anglo-Saxon principles as natural justice requiring no positive enactment. A natural law claim—but whose natural law? Anglo-Saxon character as the vessel of these principles. Character shaped by what? By the ecclesiological formation Strong had described: Protestant direct encounter with God producing self-governing individuals. The Court did not need to name the theology. The theology operated through the vocabulary it had already saturated.
Balzac v. Porto Rico (1922)
Chief Justice Taft extended the doctrine two decades later, holding that jury trial—this institution of Anglo-Saxon origin—need not extend to Puerto Rico because it postulated a conscious duty of participation in the machinery of justice that was hard for people not brought up in fundamentally popular government at once to acquire.
By 1922, Puerto Ricans had been U.S. citizens for five years. They had fought in the First World War. They were governed by a Congress in which they had no vote. And the Supreme Court held that they could not receive jury trial—not because of any individual failing, but because their formation had not prepared them.
The formation in question: three centuries of Catholic Spanish colonial governance. The Court racialized a procedural right by calling it Anglo-Saxon, then withheld it from peoples whose religious and colonial formation had been Catholic.
This is religious establishment. The Court determined that a specific ecclesiastical formation—Protestant, English-speaking, Anglo-Saxon—was prerequisite for the exercise of constitutional rights. Peoples formed under a different ecclesiastical tradition—Catholic, Spanish-speaking—were held constitutionally unready for those rights. The establishment operated not through naming a state church but through treating a specific theological formation as the condition of citizenship.
The Double Hierarchy
The Insular Cases thus installed a double theological hierarchy in American law:
The first layer came from the original Discovery Doctrine: Christian peoples possess sovereign rights, non-Christian peoples do not. Chief Justice Marshall embedded this in Johnson v. M'Intosh (1823), holding that the character and religion of indigenous inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim ascendancy. He acknowledged the pretension was extravagant but held that because it had been asserted and sustained, it had become the law of the land. Marshall established Indigenous peoples in Cherokee Nation v. Georgia (1831) as domestic dependent nations in a state of pupilage—wards requiring a guardian.
The second layer came from the Anglo-Saxon Protestant capacity doctrine: within Christendom, Protestant peoples self-govern while Catholic peoples require tutelage. The Insular Cases added this second tier to the Discovery Doctrine's original binary.
The resulting hierarchy: Anglo-Saxon Protestant (capable of self-governance) → Catholic peoples (requiring tutelage) → non-Christian peoples (lacking rights entirely). This is not a racial hierarchy that happened to track religious affiliation. It is a theological hierarchy that generated racial categories as instruments of its sorting operation.
The same Justice Edward White authored both Lone Wolf v. Hitchcock (1903), establishing unreviewable plenary power over Indian nations, and the Downes concurrence creating the incorporated/unincorporated distinction for territories. In Lone Wolf, White cited precedent declaring the government would be governed by considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Both frameworks: same theology, same warrant, same establishment.
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V. THE SECULARIZATION: SAME WARRANT, CHANGING VESTMENTS
The most consequential feature of this establishment of religion is not its content but its capacity for secularization—progressive replacement of explicit theological vocabulary with apparently neutral alternatives that preserve the identical hierarchical operation.
The Vocabulary Migrates, the Warrant Remains
Stage one spoke the theology plainly: Christian duty to civilize.
God's chosen people. Christianize and civilize. The papal bulls, the royal charters, the missionary mandates.
Stage two (1880s–1920s) translated theology into racial-civilizational vocabulary: Anglo-Saxon principles.
Teutonic self-governance. Alien races. The Insular Cases. The theology still audible to anyone listening.
Stage three (post-WWI through Cold War) completed the secularization into cultural-developmental terms: Western civilization.
Democratic values. Developing nations.
Columbia created its "Introduction to Contemporary Civilization in the West" in 1919—originally a wartime course redesigned for peacetime. By 1964, Western Civilization courses were required at virtually every American university. The framework expanded the circle slightly—incorporating French, Italian, other European contributions—while maintaining the core narrative: Athens to Jerusalem to medieval Christendom to Anglo-American democracy.
"Western" functioned as surrogate for whiteness, which functioned as surrogate for Protestant, which functioned as surrogate for the original theological warrant. A senator during 1949 NATO ratification hearings made the equivalence explicit: defending our so-called western tradition meant protecting the culmination of a thousand years of the Anglo-Saxon people.
Stage four (contemporary) adopted the vocabulary of pluralism while maintaining the sorting operation: Judeo-Christian values.
Liberal democratic order. Clash of civilizations. Rule of law. The phrase "Judeo-Christian" emerged in the 1930s to combat anti-Semitism, became mainstream during World War II, and was captured by the Christian right in the 1980s when Jerry Falwell replaced his older language of Christian nationalism with praise for traditional Judeo-Christian values concerning the family. The phrase expanded the circle to include Jews while maintaining the fundamental exclusion—tacitly subsuming Judaism into Christianity while explicitly excluding Muslims and others.
The Return of the Repressed
Samuel Huntington restated the Anglo-Saxon thesis in updated vocabulary. In Who Are We? (2004), he asked directly: Would America be the America it is today if it had been settled not by British Protestants but by French, Spanish, or Portuguese Catholics? He answered: No. It would not be America. It would be Quebec, Mexico, or Brazil. He wrote that the Anglo-Protestant culture of the founding settlers had been the central and lasting component of American identity. He claimed to argue for the importance of Anglo-Protestant culture, not Anglo-Protestant people—precisely the shift from biological to cultural register that the Anglo-Saxonists had been executing since the 1890s. The theology remained intact. Only the vestments changed.
In January 2019, Representative Steve King inadvertently exposed the entire genealogy in a single sentence: White nationalist, white supremacist, Western civilization—how did that language become offensive? By listing three terms as interchangeable, King revealed the continuity the secularization trajectory was designed to conceal. In April 2021, the "America First Caucus" draft platform called for uniquely Anglo-Saxon political traditions, demonstrating that the original religious vocabulary remains available when subtler alternatives fail.
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VI. THE ESTABLISHMENT CLAUSE ARGUMENT
If this genealogy is correct—if "Anglo-Saxon" operates in American jurisprudence as theological warrant rather than racial description—then the Insular Cases represent precisely what the First Amendment prohibits: the establishment of a specific religious framework as the condition for constitutional rights.
The Court did not name a state church. It did something more effective. It treated a particular ecclesiastical formation—the Protestant tradition of unmediated self-governance, direct encounter with scripture and God, individual conscience as political faculty—as the neutral baseline against which all other formations were measured and found wanting. Peoples formed under Catholic ecclesiology were not merely different. They were constitutionally incapable—and their incapacity was determined by theological criteria operating under secular cover.
This establishment was never disestablished. The Insular Cases remain binding precedent. Justice Gorsuch wrote in United States v. Vaello Madero (2022) that the flaws in the Insular Cases were as fundamental as they were shameful—that nothing in the Constitution speaks of incorporated and unincorporated territories, that the cases could claim support only in ugly racial stereotypes and theories of social Darwinists. Justice Sotomayor agreed they were premised on beliefs both odious and wrong. But neither the majority nor the concurrence overruled them. The religious warrant still governs.
The Vatican formally repudiated (but did not repeal) the Doctrine of Discovery on March 30, 2023. Johnson v. M'Intosh was never overruled. Justice Ginsburg cited it as recently as 2005, in City of Sherrill v. Oneida Indian Nation. The plenary power doctrine over Indian nations—established in Lone Wolf using the same theological framework—persists unrestricted. As legal scholar Peter d'Errico has written, the result is the same as if the Doctrine of Christian Discovery had been written into the Constitution.
He used the right word. Christian Discovery. Not European. Not Western. Christian. Scholar Steven Newcomb has documented how the systematic replacement of "Christian" with "European" in scholarly accounts prevents accurate history by placing a more modern and secular term in place of the word actually in use in the fifteenth and sixteenth centuries. Each such replacement performs another iteration of the secularization that conceals the theological warrant.
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VII. THE PATTERN
The genealogy from papal bulls to "Anglo-Saxon principles" to "Western civilization" to "Judeo-Christian values" to "rule of law" does not describe a series of replacements. It describes a single continuous operation of religion: the production of a hierarchy in which peoples formed under one ecclesiastical tradition occupy the position of self-governing subjects, while those formed under other traditions—or no tradition recognized by the warrant—occupy the position of peoples requiring governance by others.
Each stage of secularization made the religious substrate harder to see. The vocabulary became more inclusive. The circle of belonging widened slightly. Explicit religious content was replaced by cultural, then civilizational, then procedural cover-ups. But the operation—the division of humanity into those whose religions qualified for self-governance and those theologically disqualified—remained structurally identical from Nicholas V's 1452 bull to Taft's 1922 opinion to Huntington's 2004 book.
The genius of the system was never the content of the religion. It was the religion's capacity for self-concealment. Each new vocabulary appeared to repudiate its predecessor while performing the same work. "Western civilization" appeared to transcend the racial parochialism of "Anglo-Saxon." "Rule of law" appeared to transcend the cultural parochialism of "Western civilization." At each stage, the religious warrant became harder to name, harder to challenge, harder to recognize as theological.
To call this "racism" is accurate but insufficient. Racism was the instrument. To call it "academic theory" is accurate but insufficient. The academy was the seminary. The substrate—the thing that generated the racial categories, that animated the academic theories, that structured the legal doctrines, that still governs the territories—is RELIGION. A specific RELIGION. A RELIGION with traceable authors, identifiable doctrines, documented transmission, and continuing legal force.
When the Supreme Court said "Anglo-Saxon principles," it was not reaching for a metaphor. It was pronouncing a creed.
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PRINCIPAL SOURCES
Primary Legal Sources
Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)
Downes v. Bidwell, 182 U.S. 244 (1901)
Dorr v. United States, 195 U.S. 138 (1904)
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)
Balzac v. Porto Rico, 258 U.S. 298 (1922)
United States v. Vaello Madero, 596 U.S. 159 (2022) (Gorsuch, J., concurring)
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)
Primary Theological-Political Sources
Papal Bulls: Dum Diversas (1452), Romanus Pontifex (1455), Inter Caetera (1493)
Strong, Josiah. Our Country: Its Possible Future and Its Present Crisis (1885)
Beveridge, Albert J. "In Support of an American Empire." Congressional Record, 56th Congress, 1st Session, pp. 704–712 (January 9, 1900)
Burgess, John W. Political Science and Comparative Constitutional Law (1890)
Adams, Herbert Baxter. "The Germanic Origin of New England Towns." Johns Hopkins University Studies in Historical and Political Science (1882)
Huntington, Samuel P. Who Are We? The Challenges to America's National Identity (2004)
Secondary Scholarship
Newcomb, Steven T. Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008)
Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest (1990)
Weiner, Mark S. "Teutonic Constitutionalism: The Role of Ethno-Juridical Discourse in the Spanish-American War." In Foreign in a Domestic Sense, eds. Burnett & Marshall, Duke University Press (2001)
Saito, Natsu Taylor. Meeting the Enemy: American Exceptionalism and International Law (2010)
d'Errico, Peter. Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (2022)
Freeman, Edward Augustus. Comparative Politics (1873)
Vatican Repudiation
Dicastery for Culture and Education and Dicastery for Promoting Integral Human Development. "Joint Statement on the 'Doctrine of Discovery.'" Vatican, March 30, 2023
