Customer Reviews

Separation of Church and State

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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.

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.

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.

What a tremendous contribution to the debate! Hamburger's book is a survey of the development of this phrase beginning in the Reformation, and carrying down through nativist and 20th century Ku Klux Klan campaigns. With this and Daniel Dreisbach's book on Jefferson's "wall" metaphor, the strict separationist view is now on the historical defensive.

This is a book that is definitely worth reading, at the very least because of the almost ferocious research skills of the author on display. He put together an array of very informative and intriguing sources, often in extended quotation, that really helps one get a sense of a cultural scene long vanished. A scene very different from our own. In this sense the book is excellent, and I enjoyed it quite a lot. Yet almost seemingly alongside this interesting research is a very strong ideological parallel track. Many contradictory and peculiar cultural moments are elucidated, showing, I think pretty convincingly that the types were inverted in terms of support for the Separation notion in the past. What that would seem to prove is that the religious miserliness of some theorists today, trying to take religion utterly our of life -- as if such could ever be done, or ever has been done in history anyways -- really fails to find support in American history broadly conceived. In showing this the book is a success. The parallel track reasserts itself mostly as an implied insight in roughly the first half of the book.. Namely, that those who assert a wall of separation are ultimately siding with those who are basically intolerant of religious diversity. The author actually does a pretty brilliant job supporting this notion, if we go along with the tacit background tactic of the book. A profusion of preachers, pamphleteers, petty government theorists, and what seems to be the odd identifiable kook are put on the same level of authority, cultural speaking, by Hamburger as very famous thinkers and founders of this country, and even with the principled notions of the founding itself. The profusion is presented as an irrefutable datum of something, and given the assertions he makes in his parallel ideological track, that something is that they prove that our current mental set-up on this issue is wrong in the historical context. Again, I find him convincing of the complexity of the matter, such that our cultural markers and cues for who believed what at the time is vexed. But this is putting carts before horses, as a logical matter, and anyone not exclusively trying to prove an ideological point would see this. Thomas Jefferson's ideas are not on the same level as Preacher So-and-So's,

The latter part of book takes a much worse turn. Interesting characters and ideas continue in uninterrupted flow, but now the parallel ideological tract becomes more strange. I think it would come as a great surprise to liberal Protestants of the Nineteenth Century who lived lives, worked, struggled to support their country's ideals and be true to spiritual callings, to find how they have been reduced posthumously by Hamburger. Apparently, for the author, the entire impetus of liberal theology, on which vast expanse of scholarly analyzes, cultural and theological, have been
based, had only one real impetus: anti-Catholic bigotry. Anyone who has any appreciation of the artistic and philosophical beauties of American culture in the Nineteenth Century, will sure find this upsetting. The sense of respectful, self-reliant independence which carved part of the beautiful ethos of this country become in Hamburger estimation a mere xenophobic fear. Here even his usual interesting profusion of little historical characters seems to fail him. He barely provides support for it, except a footnote referring to some secondary studies in the social
sciences. But if you are going to reduce the philosophical/theological background of a beautiful culture to one thing you better have more than this. It is just a wretched fact of this book that he doesn't really, except for a few oddball odds and ends. So what is left is a very clunky and unsupported notion that liberal theology, by emphasizing independence, was really trying to stick it to Catholicism, pure and simple. To me it shows again that books are not edited for coherence anymore. Perhaps they are edited for ideological colorfulness or something similar. The book could plausibly said to be an exciting read in that regard given Hamburger's very evident research talents.

This incredibly grandiose reduction of a liberal view in the Nineteenth Century has a particular facet in Hamburger's treatment which concerns me especially. From his acknowledgments we learn that Hamburger spent some time with specifically Masonic sources. But when he treats Masonry it is not as one of the few places in world history where human beings actually went out of their way to enshrine the notion of freedom of belief, but in the author's personally concocted ideas of it. In any basic source on Freemasonry one would learn that the notions of Light and Darkness are used, in part large part, from the Eighteenth Century onwards are symbols of the overcoming of superstition and fanaticism. I literally cannot conceive of how anyone who had read a basic guide to Freemasonry could avoid learning this. But somehow in Hamburger's tome Masonry has become at once part of the liberal viewpoint, whose real secret point was to limit religious freedom, and another howler. This other issue is so spectacularly far from anything Freemasonry involves that I can barely even describe it , and must quote Hamburger in his discussion of Freemasons:


"They increasingly mimicked the severity of orthodox theology... allowing Masons to enjoy in their lodges a staged version of the emphasis upon sin and punishment they had rejected in their churches. Once suggestive of the goodness of man, Masonic rituals now dramatized his sinfulness." (p. 398)


Hamburger could have read Albert Pike's Magnum Opus, or other real sources of Masonic ritual from the period. If so, there is no way he could have come to this flamboyantly wrong insight. Everything about the Masonic ethos is utterly opposed to the very emphasis Hamburger attributes to it. One can only draw the conclusion that this scholar, who is clearly capable of admirable and fiercely investigative forays when he wants to be, is also capable of doing the exact opposite, and not feeling even a twinge of compunction for his fellow citizens. The only support he gives for this pure misreading is Carnes' book Secret Ritual and Manhood in Victorian America, p. 52, which is fine book. Carnes wrote an entire book to frame specific notions of Masonry and Fraternalism at the period. This should have made it easy to see that his ideas on p. 52, superficially like the ideological view Hamburger is trying to put forth, are surely not just about "sin and punishment". In a fraternity of men, as Carnes makes clear, it was a great sin to do something against your Brothers and against the Fraternity. That is the context for this notion, which Carnes makes massively clear throughout his book. And when he says that this was more severe than the liberal -- increasingly atomized -- of Nineteenth Century Protestant churches he is precisely right. That is why Fraternities were so popular! Again, one would have to go out of one's way to not get this basic point. But to go further and to portray all of Freemasonry's development in the Nineteenth Century as in the direction of hyper-vigilance on sinfulness is from a zone of willful creation. It is just a fantasy.

This specific case leaves the reader with the sense that this very powerful scholar has a rather tawdry goal in mind. To buck up a view that he prefers. And he is willing to put his powerful talents to work in an admixture of fact and pure fable, and spectacular misreading. Sadly, I think a man like this, in the end, is more dangerous than Glenn Beck. Though much less well known, he could very easily be taken infinitely more seriously. Ironically, and more than a little tragically, for very good reason, as I have said. This was a very fine and interesting book in some ways. I would implore a scholar like this to consult a sense of conscience more closely in future, and not just ride on his evident talents.

Hamburger's book seems overly thorough in making extended analyses of the many major elements of the Church/State history of America. In many cases there was little risk that a critic would argue the points that he made, and made, and remade. Sometimes less is more.

In general, he makes a persuasive presentation of what happened and the causes therof. A+ on technical data, less so on making his points succinctly.

The idea of "separation of church and state" today is in much debate as those on the religious right accuse the secularization of America for countless social ills, and recent decisions such as the controversial ruling on the Pledge of Allegiance and subsequent mass public outcry demonstrate exactly why the issues Mr. Hamburger discusses are so important in today's society.

The historical analyses are indeed interesting but do seem somewhat revisionistic in nature, such as the idea that the founding fathers "didn't really intend for strict separation"--what they meant is certainly up for debate, but the changing interpretations of the First Amendment are the very nature of our government, not a "myth" invented later in history.

Overall, the book to me seems somewhat slanted to the idea that the state and church (namely, the Christian church) need not be so cleanly divided as has been recent policy, but it is nonetheless an interesting read.

In one of the latest books denouncing Separation of Church and State as a "myth", Philip Hamburger claims that Separation is "untethered to the Constitution", and that the founders did not have Separation in mind when they were writing the Constitution.

This is not just false, but demonstrably false.

Hamburger, who is a self-proclaimed "student of the First Amendment", should have read the First Amendment more carefully. It reads as follows: "Congress shall make no law respecting an establishment of religion nor prohibiting the free exercise thereof".

The Constitution is quite clear in its wording: Congress - the government - is prohibited not only from establishing religion but from respecting an establishment of religion. That is the essence of what Separation is: preventing religious incursions into government affairs and preventing government incursions into religion.

This concept is not, as Hamburger claims, contrary to the modern understanding of Separation. Mandatory prayer was banned in public school because it was a government incursion into religion - requiring students to pray to the Christian God in government schools is unconstitutional. A monument of the Ten Commandments was taken down because it was a religious incursion into government - while all religion is not barred from the public square, such religious imagery should not be displayed in places that would suggest government endorsement of those beliefs.

Both of the above examples are exactly what our founders intended when they first separated church and state in our Constitution. Its purpose was not - and is not - "limiting religion" but keeping the government out of religious affairs completely so that true religious liberty - unhampered by the influence of government - can flourish. I'm surprised that conservatives - who are usually the most vocal proponents of smaller and less intrusive government - have written such glowing reviews for a book that opposes a Constitutional principle that keeps the government out of our religious affairs.

It is unfortunate that some groups, such as the KKK, have used Separation as a tool for division. That is not a reason, however, to oppose the concept of church and state separation. Adolph Hitler breathed air. Shall we stop breathing air to prevent the appearance of imitating Hitler? Using Separation to restrict the rights of Catholics was not the intention of the founders, it is not my intention, and it certainly isn't the intention of modern judges who interpret the Constitution that way.

Using the KKK as a guilt-by-association smear against Separation not only doesn't address the Constitutionality of church and state separation, but it is an immature tactic best left to grade-schoolers on the playground - not to serious scholars of the Constitution.

I urge Hamburger - and all the other modern authors who have written books denouncing Separation of Church and State - to learn the facts.

I only skimmed this exhaustive study of the separation of Church and State. Allow me to express my thoughts on the issue.

Yes, the Constitution does not explicitly specify a separation of Church and State. I think what Jefferson was stating is that the First Amendment effectively does separate Church and State.

The opposite would be a union of Church and State. How would the Church and State unite, by making a law respecting the establishment of religion. Therefore, the First Amendment makes such a union impossible. You cannot have even a partial union.

Simply said, the church and state are separate entities.

p.s. Sweet Mythical Jesus, you guys are brutal!

The first step of any nation moving towards fascism/imperialism is comingling of church and state. This book is an unnecessary and irresponsible junk.