| Book Review | Law and History Review, 23.1

Book Review

Philip Hamburger, Separation of Church and State, Cambridge: Harvard University Press, 2002. Pp. xiii + 501. $49.95 (ISBN 0-674-00734-4).

This rich analysis of American thinking and practice concerning church-state relations takes its start from two propositions. One is that there is a radical contrast between eighteenth- and twentieth-century ideas on this subject, the other that "the standard history" has generally failed to record or even understand this contrast.

Hamburger argues that, despite Jeffersonian references to a wall of separation, framers of the American Constitution and Bill of Rights had nothing of that sort in mind. The most they intended was to forbid any national Establishment that would privilege one church or form of belief and subordinate or otherwise disadvantage others. Only in the course of the nineteenth century was anything properly called "separation" widely discussed or even partially implemented. The newer conception, however, when it did take hold, not only banned forms of support for religion that might connote establishment. It "also pointed to something more dramatic—a distance, segregation, or absence of contact between church and state" (3).

Not only scholars, Hamburger believes, but also liberal jurists and legislators, have managed to downplay or deny the disparity between these two positions. The true intentions of the founders have therefore been obscured behind a cloud of historical mythmaking. What is worse, the myth in question has been mobilized by thoroughgoing separationists, many of whom will stop at nothing to keep religion out of the public square and out of all discourse on public policy.

Hamburger does not suggest that everyone from 1800 on who has championed or chronicled "separation" has embraced the Jeffersonian metaphor. Although Justice Black employed it in the Everson decision of 1947, some of his colleagues and successors found they could not go along. In Zorach (1952), for example, Justice Douglas remarked that if the First Amendment had really constructed a wall, churches could not be required to pay property taxes, nor could municipalities provide churches with fire and police protection. But Hamburger complains that even those who have seen the line between these entities as "blurred, indistinct and variable" (Chief Justice Burger, in Lynch v. Donnelly [1984]) have had difficulty escaping the illusion that "the separation of church and state" is a Constitutional mandate. Certainly they have made no effort "to shake off the phrase" (8–9). It is vitally important, he thinks, that we all come to understand that "separation" was not in the lexicon of most of the founders nor in the minds of the eighteenth-century religious sectarians who engaged in anti-establishment agitation.

So how did Americans come to believe that the principle of separation is part of their Constitutional heritage? According to Hamburger, it all started when opportunistic anti-Federalists promoted that principle as a means of attacking, and they hoped silencing, Jefferson-hating clergymen; and the idea gained more currency when Jefferson himself attempted to aid Baptist dissenters. But the Baptists and others like them still declined to champion anything beyond disestablishment. The more aggressive separationist ideas did not become widespread until the middle decades of the nineteenth century, when they served as weapons in the hands of anti-Catholic nativists.

At that time and after there were some who worried that separation would end religious influence on society, but most Americans assumed "casually" that nothing of the sort would happen. Their confidence seemed vindicated when secular champions of separation—many of whom did aspire to remove religion entirely from public life—failed to obtain a Constitutional guarantee of absolute church-state separation.

Having lost their battle to amend the Constitution, secular champions of separation began conspiring with religious advocates to reinterpret it by injecting an alien "wall of separation" into the First Amendment. When Justice Black cited the Jeffersonian metaphor in Everson, he was voicing what had already become a national consensus: that separation is an unassailable Constitutional right.

Hamburger's extensive and intensive description of the separation concept and its applications stands as a major contribution to both legal and cultural history. His presentation is often overly detailed, in annotation as well as in text; many footnotes contain more words than the pages on which they appear. But the prose is clear, and the author guides readers skillfully through the complexities both of the historical account and of his own interpretation. Many of the fourteen chapters provide us with the most thoroughly researched accounts we are likely to have of particular episodes in this longstanding debate.

The problems that will arise for many readers—perhaps for cultural historians in particular—reside in Hamburger's admirably up-front but frequently tendentious or question-begging interpretations of his data. The more important of these arise from an inadequate historicizing of his key term, separation, and a consequent failure to do justice to those who, at various times, have made use of that term.

Among major nineteenth-century reporters on such matters to European and American readers, Tocqueville in the 1830s, Robert Baird a decade later, Lord Bryce, Josiah Strong, and Philip Schaff in the 1880s all felt quite able to employ the language of separation (even absolute separation) to denote a venerable tradition that—however awkwardly—had always left in place many forms of interaction between the churches on one hand and the state and national governments on the other. Had these observers been able to look forward into the twentieth century, they would have noticed the scorn that Joseph Martin Dawson, one of the strictest of all religiously based separationists and the founder of what would become Americans United for Separation of Church and State, felt for "emotionally-minded and strangely uncomprehending people" who imagine that separation connotes "a purely secular state" (A Thousand Months to Remember, [1964], 257). And they would have considered Dawson's scorn well founded.

How could that be? Were these nineteenth-century observers unable to see that the word "separation" means or forecasts a virtual estrangement between churches and governments, and a motivation to remove religion from public life?

Not at all. Had they thought it necessary, they would have reminded their readers that in the context of late eighteenth-century Western cultures disestablishment itself had constituted an enormous and epochal act of separation—whether or not one used that term. Looking farther back, they would have pointed out that the Puritans of early New England had instituted measures of separation that in their time and context had been radically revolutionary. They had, for example, implemented the outrageous idea that clerical persons should not hold public office! In other words, interpreters of the church-state battles, over the years, have not necessarily been wrong in seeing important continuities between the prescriptions advanced by early foes of establishment and those of twentieth-century separationists like Dawson.

Another vulnerable element in Hamburger's account is his excessive emphasis on an anti-Catholic factor in separationist advocacies. That nativism, whether mild or virulent, helped confirm popular assumptions about the need for separation can scarcely be doubted. But Hamburger's claim that anti-Catholicism was a major motivation—perhaps the major motivation—for an allegedly new commitment is not well supported in most of his citations. Such a claim gets this relationship the wrong way around. Nativist prejudice did sometimes strengthen popular convictions about separation. Far more often, however, a preexisting commitment to separation provided the rationale or excuse for anti-Catholicism.

Tocqueville to his astonishment was unable in the 1830s to find a single Catholic priest who did not "[attribute] the peaceful dominion of religion in their country mainly to the separation of church and state" (Democracy in America, Bradley ed. [1945] I, 308). These priests were not brought to such views via anti-Catholicism; but neither, it would seem, were any substantial number of the other Americans (outside of the rabidly nativist minority) whose views the major nineteenth-century observers reported. What all of these writers assumed, and some expressed, was that the principle of separation, if only in an eighteenth-century idiom, had triumphed decades earlier in the national and most state constitutional conventions. (This despite the fiercely expressed objections of delegates whose anti-Catholicism, be it noted, had led them to champion religious establishments rather than any form of separation. A delegate from North Carolina had warned that without an establishment the pope might be elected president (Schaff, Church and State, [1888] 25). Subsequently, the most common argument, even in the vigorously anti-Catholic polemics of Josiah Strong, was that Catholics could never adjust to an American non-establishment system that was firmly and gloriously in place.

In the book's longest chapter Hamburger pursues, very usefully, the familiar point that nativists deplored and feared American Catholics' commitment to church-state alliances. What the chapter does not do, to any significant degree, is support the author's contention that Americans needed this Catholic "threat" to move them from disestablishment advocacy to broader definitions of the meaning of religious freedom.

Hamburger's preoccupation with anti-Catholic motives for separationism would be less of a problem were it not for his near ignoring of another persistent tradition that can be called anti-Protestant (or, more precisely, anti-"Puritan" and anti-revivalist). A good many proponents of disestablishment and separation, from Thomas Paine and Ethan Allen in the early days of the nation, through Cobbett and Ingersoll and many others in the nineteenth century, to the legions of Mencken-esque despisers of religion in the twentieth, were more acerbic about Protestant cultural and political hegemony than about any dangers of a Catholic threat to American freedoms. Yet except for a section (a superb one) on the separationist advocacy of late nineteenth-century organizations like the Liberal Leagues, Hamburger has relatively little to say about anti-Protestant fulminators who really did go all the way in their determination to extrude religion from American society. Ingersoll, whose lectures and books probably reached thousands more Americans than were influenced by any five or ten of his nativist competitors, disliked the pope but trained his fire on the Protestant establishment. Yet Ingersoll generates just a few brief references; and others in this long tradition, from Allen to Mencken, receive no notice at all.

Hamburger's basic contention—that American judicial and public opinion came to favor forms of separation that ventured well beyond legal disestablishment—should be regarded as a gloss on the conventional wisdom much more than a revision of it. His indictment of the "standard history" for supposedly regarding later readings of the First Amendment as clearly resident in the original will, I think, astonish anyone who has maintained contact with the scholarship on this subject over the past half-century. Historians like Perry Miller and Sydney Ahlstrom can be read and perhaps criticized for a too-whiggish vision of the continuities in the history of religious freedom; and zealous separationists like Leo Pfeffer did seem to believe that Thomas Jefferson's language justified or even mandated that of Justice Black. But no one else studying or teaching in, say, the 1950s assumed that a given extrapolation—whether broad or narrow—of the religion clauses necessarily reflected a specific "original intent" on the part of one or more of the founders.

Certainly Anson Phelps Stokes, whose three-volume Church and State in the United States (1950) served for some time as almost the only standard history available, suffered from no such delusion. But Hamburger's report on "the standard history" ignores Stokes, as it does the discussions of this subject in the landmark Princeton volumes of 1961 on Religion in American Life. Nor does Hamburger, when dealing with historiography, pay any serious attention to the two-volume Church and State in America that John F. Wilson edited in 1986. In that publication, the late Elizabeth B. Clark concluded that "the attempt to depict a single true meaning or intent" in the making of the religion clauses "is a questionable enterprise." The founders, instead of attempting to agree, had left most of the church-state issue to the states and the courts (Church and State in America, II, 154). Neither Clark nor most (if any) of her twenty colleagues in the Wilson project can fairly be seen as subscribing to the kind of "standard history" Hamburger describes and deplores.

Nathaniel Ward, the seventeenth-century religious and political pundit, remarked that "a good text deserves a fair margent." Hamburger's hit-or-miss historiography is unfortunate as a margin or framing for his text. This circumstance, however, does not entirely vitiate the high quality or the value of the text itself.

William R. Hutchison

Harvard University

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