Separation of Church and State
by Philip Hamburger.
Harvard University Press (Cambridge), 528 pp., $59.95 cloth, 2002.
Few ideas have greater resonance in our political culture than belief in the separation of church and state. Indeed, so pervasive is its influence that most Americans (including many jurists) regard separation of church and state as synonymous with the religious liberty guaranteed by the First Amendment. Yet, as Philip Hamburger, John P. Wilson Professor of Law at the University of Chicago, argues in his important book, the establishment clause of the First Amendment was never intended to create a wall of separation between church and state. On the contrary, as Hamburger demonstrates, it took more than a century and a half of strenuous effort by separation’s supporters (many of them animated by profound nativist prejudice) to make separation the dominant understanding of religious freedom, and the continuing influence of the separationist approach serves to diminish rather than enhance Americans’ religious freedom.
In the first part of Separation, Hamburger lays out the intellectual and cultural context in which the religion clauses of the First Amendment were written, making it quite apparent that the idea of separation of church and state played no role in the framers’ thinking. For virtually all late eighteenth century Americans took it for granted “that republican government depended on the morality of its citizens and that morality depended on religion.” This was the view not only of those favoring church establishments, but even of the religious dissenters who are frequently alleged to have been early advocates of church-state separation. In fact, the eighteenth century dissenters did not seek the separation of church and state, for separation implied “a distance, segregation or absence of contact between church and state,” a prohibition of “contact between religious and civil institutions”; it also suggested limits on the freedom of religious bodies to voice their beliefs in the public sphere.
On the contrary, what the dissenters actually sought was disestablishment, that is, an end to the union of church and state in which an established church enjoyed special privileges, such as publicly funded salaries for its clergy, while the members of dissenting religious bodies suffered restrictions on their right of worship and in some cases civil penalties such as religious tests for holding office. The dissenters thus understood their support for disestablishment as fully compatible with extensive cooperation between religious bodies and government, but on a nondiscriminatory basis of equality. Accordingly, the religion clauses of the First Amendment, which were designed to accommodate the concerns of the dissenters, did not intend separation of church and state, but rather a form of disestablishment in which religious people, both as individuals and as organized into religious bodies, would enjoy a robust religious freedom, including the freedom to bring their faith to bear on the social order.
But if separation of church and state—a phrase that appears nowhere in the Constitution—was not the guiding principle in formulating the religion clauses of the First Amendment, how did it come to holdsuch a dominant place in our understanding of religious liberty? Hamburger devotes the principal part of his book to tracing the long process by which separation of church and state evolved from an obscure phrase to the reigning interpretation of the establishment clause. Its first notable appearance occurred during the presidential election of 1800 when Jeffersonian Republicans, believing “in a society in which individuals engaged in politics independently, unburdened by the customs of their forefathers or the authority of their ministers,” invoked it against Federalist clergy who had accused Jefferson of being “a deist and an infidel.” Such criticisms, the Jeffersonians insisted, violated the principle of separation of church and state. Shortly thereafter, hoping to advance the anti-clerical and anti-ecclesiastical agenda of the Republicans, Jefferson himself gave further (and some would say definitive) expression to the separationist view in his famous 1802 letter to the Danbury Baptist Association in which he declared that the First Amendment had created “a wall of separation between church and state.”(Hamburger draws extensively on Jefferson’s personal correspondence to reveal an even more marked anti-clericalism and deep seated hostility to organized religion than are evident in the letter.)
Somewhat surprisingly, in view of the prominence it would later receive, Jefferson’s letter made little impact at the time of its appearance. In fact, it was not until the 1840s that the idea of separation of church and state really began to gain wide acceptance, as native born Protestants, alarmed by increasing numbers of Catholic immigrants, and viewing the Catholic Church as an obscurantist, authoritarian institution that, ruled by a foreign prince, exercised a kind of mind control over its members, embraced separation of church and state as a way of limiting the grave threat they believed Catholicism posed to American freedom. (We should not forget that this was a period in which the nativist and virulently anti-Catholic “Know Nothing” movement emerged as a major force in American politics as well as a time when violent attacks directed against Catholics were not uncommon). Nativist Protestants used the idea of separation of church and state to restrict the influence of Catholic clergy in politics and to eliminate public support for Catholic education.
Particularly notable in this regard was the school question, where nativist legislatures, seeking to make the public or common school an agent of both Americanization and Protestant evangelization—the two were closely linked in their minds—promoted common schools in which a non-denominational Protestantism was taught, the (Protestant) King James version of the bible was regularly read, and textbooks filled with anti-Catholic propaganda were used, even as they refused public support for “sectarian” Catholic schools because such support would allegedly violate the separation of church and state. Nativists could hold these contradictory positions because, influenced by the individualistic, egalitarian ecclesiology characteristic of much of Protestantism, they did not think of themselves as part of a structured, hierarchical church; accordingly, as they saw matters, supporting a non-denominationally Protestant public school system while denying funds to Catholic schools on separationist grounds made sense because what they sought was the separation of church from state, not of (the Protestant) religion from government.
In the latter half of the century, nativists continued to invoke the idea of separation to keep Catholics at the margins of American life. Moreover, recognizing that the Constitution did not actually mandate separation, nativists began in the 1870s to propose constitutional amendments intended to make separation the law of the land and to preclude any possibility of public funding for “sectarian,” that is, Catholic schools, while leaving the non-denominational Protestant public school system fullyintact. (The most famous of these, the Blaine Amendment, failed at the national level, but was widely adopted at the state level.) Yet, ironically, while nativists recognized that the First Amendment did not in fact separate church and state, they do not seem to have recognized that the logic of separation, strictly applied, would require the secularization of the public schools (as eventually happened) and would undermine the de facto hegemony over American public life and culture that they were so intent on perpetuating. There were, however, both theologically minded liberals as well as liberals of a secular bent during this period who did recognize the full implications of separation and welcomed them. Hamburger devotes particular attention here to the secular liberals, who formed the National Liberal League in the 1870s, which was committed to achieving a full blown separation of church and state. Although their hostility to Christianity, their support for free love, and their opposition to the Comstock obscenity laws ensured their political failure, the movement nonetheless proved an influential resource for secular and religious minorities advocating separation in the following century.
When their efforts to amend the Constitution failed, supporters of separation turned their focus to Constitutional interpretation, contending, despite their previous efforts at amendment, that “American constitutions had already, since their inception, fully guaranteed a separation of church and state.” Of course, making the case that the Constitution already guaranteed separation posed a major challenge, one that called for writing a new religious history of America in which the eighteenth century dissenters were credited with advocating separation and a reinterpretation of the establishment clause thataccepted at face value Jefferson’s claim that there was a wall of separation between church and state. Once again, nativism played a key role here, particularly in the early part of the twentieth century when a number of nativist organizations arose making the case for separation and condemning Catholicism as un-American. The most important of these, Hamburger makes clear, was the Ku Klux Klan, which after its revival in 1915, quickly became a major political and cultural force not only in the south, but (as is often forgotten) throughout the nation, extending its influence to the north, the mid-west, and even as far northwest as Oregon, where it was instrumental in the passage of a state referendum making attendance at public schools compulsory. (In an account that makes at once fascinating and disturbing reading, Hamburger details how the Klan was also crucially important in fostering the career of Supreme Court Justice Hugo Black.) Over time, the advocates of separation succeeded in fostering a cultural climate in which most Americans came to identify their religious freedom with separation, and it was in this context that the Supreme Court held in the famous 1947 Everson case—a case in which the former Klansman and still anti-Catholic Black played a leading role—that the establishment clause mandated separation of church and state, citing Jefferson’s letter to the Baptists to support its ruling.
The unfortunate result of separation’s triumph, Hamburger makes clear, is a diminution of our religious liberty, especially that of religious bodies and of individuals acting as members of or officials of religious bodies. For example, separation precludes the kind of friendly cooperation between government and religious organizations clearly intended under the establishment clause. Similarly, separation denies state benefits to religious institutions “even if the benefits are distributed on the basis of entirely secular qualifications.” Finally, unlike the establishment clause, which places limitations only on government, separation limits the rights of religious organizations and clergy to bring their beliefs to bear in the public square; in 1800, it was the Jeffersonians trying to stifle toviews of Federalist clergy whereas today it’s the IRS trying to limit the right of the Catholic hierarchy to help form the consciences of the faithful on political matters by threatening to revoke the Church’s tax exempt status.
Separation contributes substantially both to our understanding of the First Amendment and of the origins, historical development, and implications of Jefferson’s metaphorical wall of separation between church and state. It is also sheds considerable light on the enormous (and highly dishonorable) role that nativism and anti-Catholicism have played in our history.
William Gould is the Assistant Dean of Juniors at Fordham College at Rose Hill, where he teaches courses in the Political Science Department and the Honors Program. He is currently completing a book on the thought of John Courtney Murray.
