Posted: February 17, 2003
hilip Hamburger is one of America's leading legal historians. In a series of thoroughly documented and highly reliable law review articles, he has been quietly revising many long-unexamined prejudices about the history of Anglo-American law. He has demonstrated that the American Founders' understanding of "equal protection" and "civil rights" is quite different from the understanding of those terms today. ("Equal protection" emphatically did not mean "equal treatment" or nondiscrimination; it meant only that all persons were equally to be protected against injury to life, liberty or estate.) He has definitively refuted the view of many conservatives as well as liberals today that religious liberty in the founding meant that there is a natural right to disobey the law when the law conflicts with one's religious beliefs (such as a law requiring one to bear arms against the nation's enemies). Hamburger has explained the founders' understanding of liberty, equality, and natural law better than any law professor I have ever read.
The present book is a good example of his work, although in some respects it is not up to the extraordinary standard set by his best published articles. It is a comprehensive history of the idea of separation of church and state in American history. Among other things, it proves, more or less, that the Establishment Clause of the First Amendment meant only (1) there was to be no mandatory religious creed for America; (2) no federal taxes were to be spent on ordinary expenses of maintaining a church or ministry for the sake of worship; and (3) there was to be no federal interference with state establishments of religion in Connecticut, Massachusetts, New Hampshire, or any other state that used taxpayer funds to pay for church buildings or ministers' salaries.
Other than that, the Establishment Clause posed no obstacle to federal spending in support of religion, limited of course to those areas where the federal government enjoys constitutional jurisdiction. This would include teaching religion in public schools in D.C. or federal territories (but not the states), hiring chaplains in Congress and the armed services, publishing religious proclamations, saying prayers at federal government events, publishing religious messages on its own currency and in federal publications, engraving religious symbols and words on federal buildings, and much more. If the president wants to teach theological doctrines in his Thanksgiving proclamations, or if Congress wants to design a Great Seal of the United States that teaches that God is pro-liberty, anti-slavery, providential, and judgmental, the First Amendment is no obstacle. If Congress wants Catholicism taught in schools in federal territories like Guam or the Virgin Islands, the First Amendment is no obstacle—so long as children are not coerced into joining religious worship in the schools.
Hamburger proves that today's predominant version of separation of church and state is not only hostile to the founders' understanding, but hostile to religion. Today's separationism is different from an earlier, incoherent version of separationism (such as that of anti-Catholic Justice Hugo Black, a former Ku Klux Klan member, nicely exposed by Hamburger). This earlier position (popular in the 19th century and the first part of the 20th) insisted on separation when Catholics asked for government support of their schools, but inconsistently favored government support of generic Protestantism in public schools, chaplaincies, and government ceremonies. The separation promoted by today's liberals is more consistent. It is uniformly hostile to any religious presence in public life, unless perhaps the religion in question supports the liberal agenda.
Hamburger's book, therefore, provides a real public service. It demolishes the liberal view (of men like Justice William Brennan) that the Establishment Clause bars all support to religion. It demolishes the conservative view (of men like Chief Justice William Rehnquist) that the Constitution allows only non-preferential support of religion. Hamburger does a good job showing that any idea of government support of "religion in general" is an illusion. There is no such thing as "religion in general." All meaningful government support of religion is always support of a particular religious view, as 19th-century Catholics bitterly experienced. Today, support of "religion in general" would include taxpayer funding of Wiccans, Satanists, Muslims (including those who teach hatred of America), and worshippers of that favorite goddess of some feminists, "Our Sweet Sophia."
Liberalism, not Ku Klux Klan Bigotry
Despite its many strengths, I have several reservations about Hamburger's book. My main reservation is the same one I have about most books in American history: namely, the absence of an adequate theoretical framework for analyzing the phenomenon in question. Let me explain.
The story that Hamburger tells is this: Most of America's Founders opposed religious establishments, meaning state funding of ministers' salaries and church buildings. Hardly anyone used the expression "separation of church and state," but to the extent the separation idea was approved of, the phrase was equivalent to being opposed to establishments only.
Today, however, "separation" tends to mean not only denial of all government support of religion, even when that support is given equally to other private associations, but complete exclusion of religion from public life. Some law professors at the cutting edge of research (such as Kathleen Sullivan) maintain that the Establishment Clause requires the outright prohibition of religious arguments when it comes to deliberations over public policy. Thus religious liberty has come to mean disadvantaging religious organizations or punishing people for expressing religious views in the wrong place (in the legislature, at school, at work, etc.).
This is part of the larger story of the rejection of the founders' understanding of liberty and justice over the past century and its replacement today by the progressive or liberal view of liberty and justice. This is the proper theoretical framework for understanding the dramatic change that Hamburger so convincingly details. It is not primarily Justice Black's Ku Kluxism or the anti-Catholicism of some Protestants that animates the opponents of the founders' understanding. They were simply made the dupes of liberals, who, as Hamburger emphasizes, made effective use of Protestant hostility to Catholicism in the service of a goal that was ultimately just as hostile to Protestants as to Catholics and Jews.
In this respect, Hamburger's book has misled many of its early readers. In the conservative reviews that I have seen, the reviewers have focused on Hamburger's discovery of the anti-Catholicism that so often animated those who used the slogan "separation of church and state"—as if this revelation were enough to discredit today's liberal anti-religious agenda. Conservatives like to dress up their arguments in terms that they think liberals will approve of (although they seldom do). But there is a world of difference between Protestants who used the separation argument as a tactical device to get government to promote Protestantism rather than Catholicism, and liberals who are hostile to Christianity altogether.
Hamburger is aware of this, but the book perhaps does not give it due emphasis. In the 1870s, as the influence of German philosophy and European hostility to religion was gaining a foothold in America, a group calling itself "Liberals" demanded an end to all government support of religion and religious institutions: no more religion taught in schools, no judicial oaths, no Sunday closing laws, and an end to "all laws looking to the enforcement of 'Christian' morality," presumably including laws discouraging nonmarital sex and divorce. Although, as he wryly notes, "Liberals quickly acquired their own reputation for an intolerant censoriousness," their view did come to be widely accepted in the 20th century. The fanatical hatred of religion by these early "Liberals" is one of his many discoveries in this impressive volume.
Hamburger's superb recitation of the facts regarding the changing meaning of separation would have been strengthened by showing this change's connection to the larger movement of American political thought, a movement away from the founders' understanding toward the new, German-inspired historicism and Progressivism. At the end of his book, Hamburger notes this paradox: "Ironically, even as religion has been separated from politics, politics has become, in a sense, religious." Hegel, the grandfather of Progressivism, provides the explanation. He rejects Catholicism and Calvinism because they both view God as a being outside of man, whom man is obliged to worship and revere. For Hegel, however, God comes into full existence only through the historical development of the human mind. The state, in Hegel's view—not the church—is the objective form of God's presence on earth, because the state is the embodiment of reason—of God. Once the state is divinized, the old-fashioned religions have to be rejected.
Too Hard on Jefferson
My second reservation about the book is that Hamburger is too hard on Thomas Jefferson. He takes Jefferson to be an early exponent of the extreme separationist view that has come to prevail today. But this goes far beyond what the historical record will sustain.
First, it is a good rule of historical interpretation to distinguish between the private thoughts of a man and his public works. Jefferson believed a great many things that never found their way into his public life. His private rants against priests, Calvinists, and some of the more obscure doctrines of Christian faith tell us very little about the principles of the founding or even of Jefferson's own public actions.
One of those public actions was the famous "wall of separation" letter to the Baptists in Danbury, Connecticut. But even this letter will not bear the weight that Hamburger places on it. Hamburger thinks that Jefferson meant that government should avoid practicing, teaching, or supporting religious views of any kind. Among other things, if Hamburger's interpretation is correct, Jefferson meant the "wall of separation" to forbid government officials, such as school teachers or presidents, from engaging in or sponsoring public prayer. Yet Jefferson closes this very same letter, written in his official capacity as president, with a prayer: "I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man." If Hamburger's view of the letter were right, Jefferson would be breaking down the wall of separation at the very moment he was proclaiming it.
Hamburger also claims that Jefferson was "indifferent to the religion of most of his countrymen and downright hostile to their religious institutions." Hamburger denounces Jefferson's "anticlerical rhetoric." Although it is true that in moments of exasperation Jefferson did criticize organized Christianity, at other times, in a more sober voice, he saw that Christianity in its American incarnation was beneficial to republican government. In his First Inaugural Address, he said that Americans were "enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them including honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence."
According to Hamburger, "Not until he came under scrutiny as president did he publicly suggest that he considered religion essential to the preservation of liberty." But in the Notes on the State of Virginia, composed in the 1780s, Jefferson made the famous statement, "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever."
Jefferson was more favorable to Christianity than Hamburger says he was. To be sure, though Jefferson said some favorable things about religion, he also said some very nasty things. He was not very consistent on the topic. But in public, at any rate, Jefferson was consistently respectful, not hostile, to "the religion of his fellow countrymen." My guess is that his French Enlightenment prejudices were in an unresolved tension with his more sensible Lockean respect for a manly Christianity that emphasizes man's moral and political duties—the kind of Christianity that prevailed in America in his day and long afterwards.
My third reservation is that the book does not always acknowledge the essential ambiguity of the expression "separation of church and state." Sometimes Hamburger rightly emphasizes that there have been multiple meanings given to that phrase. But at other times, he speaks as though it has a univocal meaning. For example, he says that few of the founders' generation favored the separation of church and state. Yet from the many quotations that he marshals, it is clear that quite a few Americans—and quite a few of the founders—favored separation in the sense of banning establishments. That is the most obvious surface meaning of Jefferson's "wall of separation" letter itself.
When Tocqueville wrote that all American Christians welcomed the separation of church and state, he meant only that the church as an institution has no official political status, and that the state does not formally support the church as an institution. Tocqueville was correctly describing the America that the founders made.
The Principles Behind the Policies
A fourth and final reservation: Hamburger should have spent some time developing the political theory of the founding as it bears on religion. The proper meaning of religious liberty is what we are ultimately discussing in the "separation" question. To understand that, it is not enough to say what the founders' policies regarding religion happened to be. We have to understand why they held the views they did, and whether they were right to do so. This is something that Hamburger could have done easily and well, judging from his several excellent articles on the political theory of the founding.
To what extent government should promote religion was a matter of controversy among the founders, as is well known. Hamburger's book (with the partial exception of the treatment of Jefferson) brings out what is not so well known: that in spite of their conflicts over the proper extent of government support of religion, all sides agreed that the right kind of religion was vital for the success of republican government, and that government should in some appropriate ways take a stand in favor of religion rightly understood. That is why in spite of their differences on the "establishment of religion" question, Jefferson, James Madison, John Adams, and George Washington could all agree on this provision of the Northwest Ordinance, passed in the same year as the First Amendment: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
Let us hope that Hamburger's useful book will encourage today's legal elites to abandon their erroneous understanding of the Constitution's religion clauses and return to the American Founders' sensible awareness that belief in a just God is not only not in conflict with political freedom, but is, as Washington said, its "indispensable support."