| Book Review | The American Historical Review, 108.4

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| Book Review | The American Historical Review, 108.4 | The History Cooperative

Book Review

Canada and the United States

Philip Hamburger. Separation of Church and State. Cambridge: Harvard University Press. 2002. Pp. xiii, 514. $49.95.
This is a big book. At 514 pages, its sheer length daunts the reader. It is also big in other ways, however, that make reading it worth the effort.	1
Philip Hamburger makes bold claims about constitutional thought in America. He argues that the religion clauses of the First Amendment did not create a "separation" of church and state. The establishment clause, as it is commonly called by lawyers, provides that "Congress shall make no law respecting an establishment of religion." This did not mean that churches and government must be kept separate, Hamburger argues, but that no one denomination should be the official state religion. Hamburger even claims that James Madison tempered his separationist views between his Memorial and Remonstrance (1785) and the Bill of Rights (1789). In Hamburger's eyes, the key figure who supported such a misreading of the establishment clause was Thomas Jefferson, who tried unsuccessfully to persuade dissenting groups that they really wanted separation. Jefferson notwithstanding, there was no "wall of separation" erected by the Constitution. The separationist ethic that has been a central feature of constitutional interpretation in the twentieth century "is without historical foundation" (p. 481).	2
The true source of separationism was a massive reorientation of political theory among "liberal" Protestants in the nineteenth century (p. 193), which posited Catholics and their priests as antithetical to American democracy. This "nativist" impulse (p. 202), Hamburger maintains in a particularly brilliant chapter, led secular and religious Americans to condemn all ecclesiastical authority because they opposed Catholics. Gradually, they persuaded themselves that this condemnation was the essence of the establishment clause and a safeguard of "true" religious liberty. The rich history of nineteenth-century anti-Catholicism has been explored before, but never so neatly connected to constitutional theory.	3
By the mid-twentieth century, the conflation of separationism and liberty was so pervasive, Hamburger argues, that the Supreme Court naturally (if unjustifiably) absorbed it in its first case involving state aid to parochial schools. Justice Hugo Black, a native of Alabama and former member of the notoriously anti-Catholic Ku Klux Klan, wrote the opinion in Everson v. Board of Education (1947). Hamburger claims that Black relied on Jefferson's wall of separation to turn his own anti-Catholicism into constitutional law. "Black had long before sworn, under the light of flaming crosses," Hamburger writes, "to preserve 'the sacred constitutional rights' of 'free public schools' and 'separation of church and state'" (p. 462). Black's majority opinion, however, upheld free bus transportation of schoolchildren to parochial schools, over the dissents of four justices. Hamburger argues that the case's reasoning, rather than its result, is the real story. The result discomfited Black's Catholic critics; the reasoning laid the groundwork for future cases. In the world after Everson, Hamburger claims, "separation has barred otherwise constitutional connections between church and state ... [T]he First Amendment, which was written to limit government, has been interpreted directly to constrain religion" (p. 484).	4
This is a powerful indictment not only of constitutional law in the twentieth century but also of a broad and long-standing American majority opinion. Hamburger has done prodigious historical detective work, and his book deserves to become a staple in history of religion clauses. His unrelenting focus on anti-Catholicism produces new insights into the cosy relationship between Protestant self-congratulation and anti-Catholic prejudice. It also condemns much of the work of the Supreme Court, which has relied on Black's constitutional historiography to decide contemporary cases.	. . .

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