Vol. 12 No. 12 (December 2002)

SEPARATION OF CHURCH AND STATE by Philip Hamburger. Cambridge, MA: Harvard University Press, 2002. 514 pp. Cloth $49.95. ISBN: 0-674-00734-4.

Reviewed by Darren R. Walhof, Department of Political Science, Gustavus Adolphus College, Saint Peter, Minnesota. Email: dwalhof@gac.edu

As recent decisions like MITCHELL v. HELMS (2000) and ZELMAN v. SIMMONS-HARRIS (2002) demonstrate, Philip Hamburger’s history of the idea of separation of church and state appears just as that idea is increasingly called into question by the Supreme Court. Separation as a framework for deciding religious liberty cases is now articulated primarily in dissent, even though the majority cannot agree on which standard(s) – neutrality, non-endorsement, non-coercion, or something else – ought to take its place. This is not to suggest that separation is history, i.e. dead and gone, and, thus, that Hamburger’s book is of mere historical interest. Rather, this rich and well-documented book already is and will continue to be an important contribution to the ongoing interpretive conflict over the meaning of the religious liberty clauses.

By the time of EVERSON v. BOARD OF EDUCATION (1947), Justice Black could rely on Jefferson’s metaphor of a wall of separation between church and state as the constitutional standard for no establishment cases. Hamburger, a professor of law at the University of Chicago, seeks to understand how this had come to pass. In particular, he wants to challenge what he calls the “standard history of separation,” in which Jefferson’s metaphor is taken to have been the constitutional standard already by 1802 when he penned his letter to the Danbury Baptist Association. Hamburger argues, in contrast, that the First Amendment was not widely interpreted in separationist terms until the mid to late nineteenth century, and that the origins of this conception lie not with the framers of the Constitution, but with a shifting and unstable coalition of anti-Catholic Protestants, nativists, theological liberals, and anti-Christian secularists.

Hamburger’s argument proceeds chronologically. In the first of the book’s four parts, he examines the terms in which eighteenth-century dissenters articulated their opposition to establishments in both England and America. Hamburger examines the writings of prominent dissenters (Roger Williams, John Locke, the Marquis de Condorcet, and Thomas Paine) as well as lesser known ones (James Burgh and Joseph Priestly) to get at the ways in which they conceptualize religious liberty. The dominant understanding of religious liberty among dissenters was not separation but disestablishment, where dissenters would have equal rights under the law and be free from the various penalties imposed on those who were not part of the established church. Where Hamburger does find separationist arguments, he claims that those advocating this approach either did not understand separation in the way it came to be understood (e.g., Williams) or were generally more radical than the mass of dissenters on whose behalf they claimed to speak (e.g., Paine). The impressive extent of Hamburger’s research here (and throughout the book) gives a great deal of plausibility to these claims. He refers not just to major published works but also to letters, sermons, pamphlets, and newspaper pieces, which he uses to establish the background against which the major published works must be read.

This reliance on a wide variety of sources reflects a sophisticated methodology that Hamburger is quite adept at and that generally serves him well. He situates his sources within political conflicts that serve not only to constrain the articulation of certain concepts but also to provide the means by which they are transformed over time. The competing conceptions of religious liberty, then, are presented not just as static theological or philosophical positions, but are generally discussed in relation to opposing arguments and against a background discourse that favored certain expressions and disfavored others. In other words, Hamburger takes note of what arguments and conceptions would have been plausible to contemporary audiences and which would not, a particularly important consideration when dealing with the history of such a contentious issue. So, he shows how in the eighteenth century separation was employed as an accusation by establishment ministers against religious dissenters – an accusation meant to imply that the dissenters believed that religion had nothing to do with society and politics. The dissenters, then, found themselves constrained in articulating their position: they wanted to condemn establishments, but they at same time did not want to be understood as denying a connection between religion and government. The language of separation was thus largely unavailable to them.

Hamburger’s argument in this first part of the book is generally compelling, but at times his overall thesis becomes a distraction, to the point that he sometimes abandons his methodology. Rather than simply presenting the ways in which the eighteenth century dissenters did understand religious liberty on their own terms, Hamburger feels compelled frequently to call attention to the ways they did not conceptualize it, i.e. in separationist terms. Doing so sometimes has the effect of undermining the force of Hamburger’s claims, especially when he relies on arguments from omission. He writes of the dissenters, for example, that “if the separation of church and state had been one of their demands, one would expect to find this principle discussed repeatedly in their writings” (p. 63). But surely the mere absence of a phrase does not necessarily suggest the absence of a concept; there may well be other reasons, including the constraints of political discourse that Hamburger elsewhere takes seriously, that could explain this omission.

This is but a small fault, however, and one largely limited to the first part of the book, which is somewhat weaker than the others. In the second part, Hamburger follows the dissenters into the early nineteenth century. In keeping with his methodological approach, he situates Jefferson’s letter and its wall metaphor in the context of a broader debate between the Republicans and Federalists over the role of the clergy in politics. During the 1800 election, Federalist clergy used their pulpits to emphasize the importance of religion in politics and also to call the commitment to religion of Jefferson and his Republican allies into question. Republicans responded by presenting this tendency of Federalist clergy to preach about politics as evidence that the Federalists remained in favor of religious establishments. Clearly, this was in part a strategy by Republicans to gain votes from citizens with anti-establishment sympathies, but the effect of this strategy was to mix resentment of establishments with resentment over the participation of clergy in politics, both of which were increasingly articulated in separationist terms. Hamburger presents a compelling case that the resonance of separationist language among Republican voters during this period was motivated more by this combination of antiestablishment and anticlerical sentiments than by any belief that religion ought to have nothing to do with politics. Jefferson and other elites, Hamburger argues, took advantage of the opportunity presented by these popular concerns to push for further diminishment of religion’s role in politics and society. The letter to the Danbury Baptists, which presented separation as constitutional law, was part of this effort. According to Hamburger, its cool reception by the Baptists themselves demonstrates that Jefferson’s views were not widely shared.

Parts III and IV tell the story of how Jefferson’s views became widely shared. In the third part, Hamburger traces the development of anti-Catholicism and nativism among Protestants in the middle of the nineteenth century. Whatever else divided Protestants of this period, suspicion of new Catholic immigrants and of their allegiance to the pope united Protestants. Prominent Protestant liberals articulated their concerns about the political ramifications of Catholicism in separationist terms, which allegedly captured the differences between Protestant and Catholic approaches to politics and which had increasing resonance with Protestants, even among those who were not explicitly anti-Catholic. At the center of this conflict, of course, were schools. In New York and elsewhere, Catholics argued that public schools were little more than publicly-funded Protestant schools, whereas Protestants viewed the same schools as nonsectarian and neutral toward religion – hence their turn toward the language of separation in order to give voice to this conception.

Hamburger’s treatment of nineteenth century anti-Catholicism is perhaps the most important contribution of his book. Not only does he help bring to light a little-told but crucial episode in the history of religious liberty in the United States, he also documents what few students of this area of constitutional law take seriously enough: that conflicts over religious liberty are inevitably and importantly conflicts about the nature of religion itself. The development of separation was not simply about the relationship between politics and religion, church and state. It also involved an increasing suspicion of ecclesiastical authority altogether and, hence, a fundamental shift in understanding of what religion is. As Hamburger argues, Protestants viewed religion as primarily as an individual rather than a corporate affair. In addition, they understood religion in terms of individual assent to certain beliefs rather than as a set of practices with a particular relationship to church authority. The Protestant understanding, then, fits well with a certain view of freedom as individual autonomy, and thus Protestants tended to see themselves acting in politics as free individuals rather than as members of a church. This was true even (or perhaps especially) when they understood themselves to be acting out of religious belief. Likewise, religious liberty as separation of church and state (or separation of religion and politics) nicely fits with this individualist, belief-centered conception of religion, but does not necessarily fit comfortably with a more corporate, embodied understanding of religion that takes ecclesiastical authority seriously. Although Hamburger does not necessarily articulate it quite this way, his account importantly suggests that the transformation of religion into individual belief underlies the development of separation as the dominant constitutional standard for religious liberty.

The consequences of this approach to religious liberty are laid out in the book’s fourth part, and they are not felicitous for Protestants. Hamburger argues that at the close of the nineteenth century and in the early part of the twentieth, anti-Christian secularists exploited separationist rhetoric to pursue their own agenda of a more thorough-going removal of religion – including Protestantism – from politics and public life. Although they failed in their attempt to add a constitutional amendment that would further guarantee the separation of church and state (despite President Grant’s endorsement), they succeeded in bringing the discourse of separation directly to bear on constitutional interpretation. During this period, the separationist discourse, whether motivated by anti-Catholic nativism or secular liberalism, had become so widespread that history itself was re-written. Various groups of Protestants, including Congregationalists, Presbyterians and Baptists, now competed to take credit for introducing separation of church and state into the United States – this despite the fact that earlier dissenters in each tradition rejected this formulation. This revisionism, then, included a rewriting of the meaning of the First Amendment itself, so that Jefferson’s wall metaphor increasingly came to be understood as the original meaning of the religious liberty clauses. Many Protestants, however, continued to view separation as completely compatible with their own beliefs and only incompatible with Catholicism.

In his penultimate chapter, Hamburger looks specifically at how this broader acceptance of separation found its way into judicial interpretations of constitutional law, leading up to the EVERSON decision. The story he tells focuses on Justice Black and his connections to the Ku Klux Klan, including the important role of Klan support in Black’s Senate campaign. As a deeply nativist, anti-Catholic association, the Klan adopted and propagated the separationist ideal, especially in expressing their view that mandatory public education was the only way to ensure American liberty. In this, Hamburger argues, the Klan and other anti-Catholic, nativist groups helped bring about a broader shift in understanding the guarantees in the Bill of Rights as American rights rather than mere constraints on the federal government. This shift in meaning supported the Court’s move toward incorporation of these guarantees through the Fourteenth Amendment, eventually leading to EVERSON’s incorporation of the no establishment clause, articulated in separationist terms by none other than Justice Black.

Hamburger’s chronology stops shortly after EVERSON. His brief conclusion to the book summarizes his overall argument, with only slight – and slightly oblique – suggestions about the meaning of his narrative for contemporary First Amendment jurisprudence. After working one’s way through his exhaustive and lengthy account, one may well desire more than this. At times throughout the narrative, it feels as if Hamburger might be building toward a defense of a particular constitutional standard today, perhaps one articulated by the eighteenth century dissenters. But he refrains, leaving to others the task of spinning out the implications of the story he has told, as they certainly will. This restraint is admirable. Indeed, it is fitting for a book that has so carefully and impressively documented the complexity of conceptualizing religious liberty to end by refusing to endorse a contemporary standard for religious liberty cases that subsumes this complexity. Supreme Court justices are, of course, required to do this, but law professors writing legal history are not. Philip Hamburger has done not only justices and legal historians but all of us interested in religious liberty an enormous service in writing his book.

CASE REFERENCES

EVERSON v. BOARD OF EDUCATION, 330 US 1 (1947)

MITCHELL v. HELMS, 530 US 793 (2000)

ZELMAN v. SIMMONS-HARRIS, 122 S.Ct. 2460 (2002)

************************************************************************
Copyright 2002 by the author, Darren R. Walhof.