Hamburger's Masterpiece

No, I'm not talking about the latest culinary offering by Hardee's. My review of the paperback edition of Philip Hamburger's defining history of church-state separation in America is out in the Autumn issue of the Journal of Church and State. The issue isn't on the web, yet, so here it is reproduced with only slight variations from the final text:

Separation of Church and State. By Philip Hamburger. Cambridge: Harvard University Press, 2004. 528 pp. $19.95.

The U.S. Supreme Court has often been accused of engaging in historical scholarship without a license. For that reason, Philip Hamburger has performed a great service by delivering a well-researched political history of church-state separation as it has evolved in the United States. The result is thought-provoking and challenging to the exalted place separation now holds in the American polity.

In Hamburger’s telling, Jefferson gains significance in the annals of separation for more than his wall metaphor. In response to preaching by Federalist clergy in New England against their man during the election of 1800, Jefferson’s Republicans began to demand separation of religion and government over and above mere anti-establishmentarianism. The account undercuts the status of separation as an American piety because it demonstrates how the principle was employed early on for a political purpose. In this case, advocates of separation sought to shield Jefferson from the attacks of those who labeled him an “infidel.”

The political uses of separation of church and state are a recurring motif throughout the book. Hamburger pays close attention to the call for separation as a method for marginalizing the political aspirations of Catholic immigrants. Through careful documentation of the various strains of American Protestant nativism, one obtains a clear picture of what separation of church and state meant to many citizen groups. For them, the term “separation” carried much of its identity as juxtaposed against Catholic predispositions toward theocracy. So, public schools could have Bible readings, prayer, and any other element of Protestant hegemony as long as no particular denomination (or “Catholic sect”) held a dominant position. Protestantism was seen as synonymous with freedom, while Catholicism carried the burden of holding its adherents in thrall. Along with a determined group of secularists (who had a more consistent approach to separation), many nativist groups sought to use the “wall of separation” as a hedge against feared papal influence.

Perhaps more interestingly as a matter of constitutional interpretation, both groups felt they needed to amend the Constitution to bring about their desired version of separation. Protestants pursued the Blaine amendment that failed at the federal level, but is now in place in several states. Secularists had their own proposed federal amendment that was unable to garner necessary support. Only after fruitlessly seeking amendment did advocates of separation begin to claim that the Establishment and Free Exercise clauses already provided for the political and social outcomes they sought. As we now know, the strategy of interpretation proved successful as the Supreme Court sought to apply the First Amendment to the states.

Hamburger’s critical history of American church-state separation raises important questions the author chooses not to answer in any detail. If not separation, then what? Is true anti-establishmentarianism adequate? Having undercut the position of separation in the American decalog, one would like to see a more legal and policy oriented book from the author as a follow-up.