Separation of Church and State [Paperback]

Philip Hamburger (Author)

Book Description

ISBN-10: 0674013743 | ISBN-13: 978-0674013742 | Publication Date: March 30, 2004

In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.

Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.

(20020515)

Editorial Reviews

Review

Philip Hamburger has, simply, produced the best and most important book ever written on the subject of the separation of church and state in the United States. He has laid to rest the historical credentials of the Jeffersonian myth of the "wall of separation," and shown how the notion of separation gained wide acceptance in the nineteenth century primarily due to the pervasiveness of American anti-Catholicism. He has also destroyed the notion that separation is the only alternative to the union of church and state, and demonstrated that acceptance of separation has in fact undermined the vitality of our original anti-establishment notions of religious freedom. Hamburger underplays the current constitutional implications of his historical arguments, but it is clear that this book will have a profound impact on the current law and politics of church and state.
--Stanley N. Katz, Princeton University, President, Emeritus, American Council of Learned Societies (20020901)

This richly documented and cogently argued book challenges conventional interpretations of separation of church and state as a constitutional standard in American history and promises to reshape the debate on the constitutional and prudential relations between religion and American public life.
--Daniel L. Dreisbach, American University (20060114)

Hamburger provides an alternate historical and political understanding concerning the development of the separation concept, relying on 17th-through 19th-century religious arguments and social patterns to challenge our accepted understanding of relationships between church and state...This clear historical analysis will be accessible to anyone interested in U.S. church-state relations and civil liberties. Highly recommended.
--Steven Puro (Library Journal )

This volume presents the fascinating and complex history of interpretations of the First Amendment in the U.S. and argues that the amendment's antiestablishment clause did not mandate separation of church and state. Instead, Hamburger insists that separation, an idea that may mean far more than the absence of establishment, became a constitutional freedom over an extended period of time, largely through fear and prejudice...Recommended.
--S. C. Pearson (Choice )

Hamburger has written an extremely important book. His prodigious learning and ingenious interpretations overturn the conventional wisdom, forcing even the most passionate defenders of separationism to recognize how much of the story of religious liberty has taken on mythical dimensions.
--Alan Wolfe (Books and Culture )

[Hamburger] devastates Jefferson's notion of a 'wall of separation' between religion and government, demonstrating that such a notion was utterly idiosyncratic at the time. Strict separation was revived by anti-Catholics in the 19th century and picked up by the court in the 20th, a development for which Justice Hugo Black bore much responsibility. The modern era of judicial hostility to organized religion and its symbols in the public square is directly contrary to what the Framers meant when they prohibited the establishment of religion. Though Mr. Hamburger does not trace the damage done by preposterous decisions in recent decades, this is a marvelous book.
--Robert Bork (Wall Street Journal )

Separation of Church and State by Philip Hamburger is, perhaps, the most talked about treatise on American church-state relations of the last generation. It is a weighty, thoroughly researched tome that presents a nuanced, provocative thesis and that strikes even seasoned church-state scholars as distinctive from most works on the subject...Hamburger's fresh appraisal of the historical record adds much to our understanding of church-state separation...Few pages in this richly documented and cogently argued book fail to excite reflection or challenge long-held assumptions.
--Daniel Dreisbach (American Journal of Legal History )

About the Author

Philip Hamburger is Maurice and Hilda Friedman Professor of Law at the Columbia Law School.

Product Details

• Paperback: 528 pages
• Publisher: Harvard University Press (March 30, 2004)
• Language: English
• ISBN-10: 0674013743
• ISBN-13: 978-0674013742
• Product Dimensions: 9 x 6.2 x 1.6 inches
• Shipping Weight: 1.6 pounds (View shipping rates and policies)
• Average Customer Review: 3.2 out of 5 stars  See all reviews (10 customer reviews)
• Amazon Best Sellers Rank: #299,245 in Books (See Top 100 in Books)

More About the Author

Discover books, learn about writers, read author blogs, and more.

Customer Reviews

Most Helpful Customer Reviews

83 of 87 people found the following review helpful:

5.0 out of 5 stars Most Outstanding Book on the Topic - MUST READ!!!, March 22, 2004

By 

Shawn Harding (Iwakuni, Japan) - See all my reviews

This review is from: Separation of Church and State (Hardcover)

Philip Hamburger, John P. Wilson Professor of Law at the University of Chicago, has written a meticulously researched account of how the American concept of religious freedom was transformed into the concept of separation of church and state. His central thesis is that this development had very little to do with the constitution itself or even with the late 18th century concept of religious liberty, but was very much a result of fear of ecclesiastical authority and anti-Catholic, or at times anti-Christian prejudice. Hamburger claims, "the federal and state constitutional provisions designed to protect religious liberty have, ironically, come to be understood in terms of an idea that substantially reduces this freedom."
Hamburger begins by tracing the origins of religious freedom in America to the European Continental Anabaptists of the 16th century and the English Baptists of the 17th century who "made arguments about the freedom of conscience." He also discusses the importance of 17th century religious dissenters and Enlightenment philosophers - such as Locke and Milton - and how they "generalized these ideas into conceptions of religious freedom eventually employed by most American dissenters." Hamburger presents the reader with a firm basis in what exactly was meant by religious freedom in colonial and revolutionary America, its relation to the various amendments to state constitutions, and the ideological context for the introduction of the First Amendment to our federal Constitution. He is quite explicit that separation of church and state was not a part of any of these developments and that, on the contrary, separation was rather more of a stigma applied to antiestablishment advocates in order to discredit them. These critics of religious establishment were quick to refute the allegation that they were proponents of separation.
Hamburger makes the argument that the separation of church and state first became an idea during the election of 1800's when the Federalist clergy were using their influence to oppose the election of Jefferson and the Republicans. But separation was used in this context only to oppose the perceived, or real union between ecclesiastical and political authority to undermine the Republicans. A fair amount of detail is given to Jefferson's now famous letter to the Danbury Baptist Association. Hamburger is quite explicit in his claim that the Baptists wanted no part of Jefferson's view concerning a "wall of separation between church and state."
Hamburger then deals with the rise of 'nativist' sentiments among Protestant Americans and the development of a new concept of religious freedom that would eventually become the modern concept of separation of church and state. He claims that the nativist Protestants, fearful of the Catholicism of ever increasing immigrants from Southern Europe, adopted separation as an 'American' ideal. These Protestants believed that the exclusive nature of Catholicism, along with its clear endorsement of the union between church and state, posed a clear danger to American liberty. Hamburger asserts that the nativists united into powerful political organizations in order to further the cause of separation and to undermine the political power of Catholics. Later, during the late 19th century and up until the present, secularists likewise created organizations in order to further a purely secular interpretation of separation, one that was anti-Christian in focus. Hamburger demonstrates that each of these movements was ultimately driven by forces opposed to the free exercise of religion by minority (or majority in the case of the secularists) religious groups. Both the Protestants and the secularists, realizing that separation was not guaranteed by the Constitution, lobbied for an amendment guaranteeing separation. After failing to secure passage of such an amendment they endeavored successfully to have their aims realized by judicial interpretation. He carries through with this theme for the remainder of the book, culminating in the famous Everson case where the Supreme Court fully incorporated the Establishment Clause of the First Amendment, as interpreted by the concept of separation between church and state.

12 of 13 people found the following review helpful:

4.0 out of 5 stars A clear, concise, and well-researched history of the Establishment Clause, November 19, 2009

By 

John M. Balouziyeh (Washington, DC) - See all my reviews
(REAL NAME)   

This review is from: Separation of Church and State (Hardcover)

Constitutional legal scholar Philip Hamburger, formerly a professor of law at the University of Chicago and currently professor of law at Columbia Law School, argues in "Separation of Church and State" that America's modern conception of the First Amendment's Establishment Clause has failed to make an adequate distinction between the establishment of religion, which the founders intended to prohibit, and the "separation of church and state," a later development that was almost never cited by eighteenth century Americans. Hamburger offers both academic and non-academic readers alike a thoroughly researched and engaging presentation of the history of the Establishment Clause and how it came to be misapplied to the detriment of religion in the American public square.

How did the nation depart from a Constitution that guaranteed religious liberty to erect a "wall of separation between church and state"? Hamburger traces the problem to Thomas Jefferson, who in 1802 in his Letter to the Danbury Baptist Association reflected on "that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State.'" Jefferson's phrase would later be adopted by the Supreme Court. Justice Black, writing for the majority of the Supreme Court in Everson v. Board of Education of Ewing (1947), adopted Jefferson's separation of church and state and made it "the foundation of subsequent establishment clause jurisprudence." Five years later, Justice Douglas in Zorach v. Clauson (1952), affirmed Black's basic principle but expressed concern over the extent to which its implications could be taken. Although the separation of church and state must be complete, the First Amendment did "not say that in every and all respects there shall be a separation of Church and State," for if this were the case, municipalities would even be prohibited from providing police services to churches or other religious groups.

Yet things would soon change. Within the context of private, religious schools, Chief Justice Burger writing for the majority in Lemon v. Kurtzman (1971), held that statutes could only provide funding for religious schools when the following elements were met: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... finally, the statute must not foster `an excessive government entanglement with religion.'" Applying these elements, the Court struck down a Pennsylvania and Rhode Island statutes that provided aid to non-public schools, including church-related schools. The Court would go further, excluding religion in public schools in Wallace v. Jaffree (1985) (Stevens, J.), nativity scenes in Allegheny County v. Greater Pittsburgh ACLU (1989) (Blackmun, J.), and prayer at a graduation ceremony in Lee v. Weisman (1992) (Kennedy, J.). Throughout this chaos, the dissents of Justices Rehnquist and Scalia often fell on deaf ears. As Rehnquist articulated in Wallace, the separation standard lacked historical support and "proved all but useless as a guide to sound constitutional adjudication."

Hamburger concludes by highlighting the fact that the original opponents of the government establishment of religion did not demand a complete separation between church and state; although they opposed governmental financial benefits to established churches, they typically did not reject the conventional view that "there was a necessary and valuable moral connection between religion and government." Today, however, the opponents of establishment have taken us to a different place, where the mere hint of government endorsement of religion is viewed as contrary to the constitution. The nation thus finds itself in a place where the very religious liberty that the U.S. Constitution was designed to protect has instead become undermined.

1 of 1 people found the following review helpful:

5.0 out of 5 stars The wall that bigotry built, August 30, 2011

By 

Joseph - See all my reviews

Amazon Verified Purchase

This review is from: Separation of Church and State (Paperback)

Separation of Church and State The author, Philip Hamburger, offers a well balanced presentation of how sixteen words of the First Amendment of the Constitution of the United States can be deliberately misconstrued for purposes that its writers never intended and how ten words written by Thomas Jefferson in a letter could become a substitute for those sixteen. Take the words themselves "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". Now, put them next to "...thus building a wall of separation between Church and State". It is no less than amazing how this transformation could have happened. As the saying goes, "Throw enough mud against a wall, some will stick". Of course if there never was a wall, if one throws enough mud, it will make its own wall!

We are all children of our own culture. When we hear things repeated again and again by people we love and respect, we will seldom question their veracity. Ideas get passed on from generaton to generation. They may change, but they do so slowly and the change is seldom noticed until the idea is totally transformed. That is what happened to our understanding as Americans of this part of the First Amendment. Going back to the beginning, as Hamburger does, makes a huge difference in our understanding.

The book is great reading. Maybe it should be compulsory reading by all of our judges, especially those on the Supreme Court.