Separation of Church and State.

• Author: Samaha, Adam M.
• Position: Book Review

SEPARATION OF CHURCH AND STATE. By Philip Hamburger. (1) Harvard University Press. 2002. Pp. 514. $49.95.

A degree of conventional constitutional interpretation is backward-looking, sometimes even nostalgic. Adjudication demands innovation, of course. But fidelity to a reconstructed past is an embedded interpretive value, which means that conclusions about the complexion of our national heritage can have consequences for federal constitutional law. An apparent case in point is establishment clause precedent and the rhetoric of church-state "separation'--a slogan that Philip Hamburger seeks to vitiate in his latest work, Separation of Church and State.

This book alone places Professor Hamburger among the most serious and industrious of the "separation" critics. By canvassing an impressive amount of primary source material, emphasizing public discourse, and exploring religious, political, and social movements, Hamburger helps to explain what various Americans thought about religion-government relations over approximately two centuries. His ultimate conclusions about "separation" are stark, yet also undergirded by something better than the wishful thinking of a beholden advocate. The book has and will receive attention from scholars and judges. (3)

Separation's analysis of rhetoric, religion, and intolerance is worth remembering for many reasons, but objections to its use in establishment clause adjudication are probably insurmountable. The book's treatment of the founding era leaves open significant issues germane to an originalist understanding, and the post-First Amendment material is harrowing but mostly irrelevant to present-day litigation. These observations are not necessarily criticisms of what Hamburger has accomplished; perhaps he did not intend to advocate any particular position on modern constitutional law. But of course authorial intent need not equate with a text's received meaning at any subsequent reading. And, whatever the author's view, Separation's sources and conclusions may pertain to contemporary constitutional disputes. This review considers the book for that connection.

1. CONTEXT FOR AND THEMES IN SEPARATION

   Church-state "separation" has been promoted by a variety of Americans for a variety of purposes, as Hamburger documents. Every constitutional lawyer is aware of Thomas Jefferson's use of the metaphor: in 1802, President Jefferson drafted a letter responding to the laments of a Connecticut Baptists association, in which he characterized the establishment clause as "building a waft of separation between Church & State." (p. 161) This word-image was vivid and potent, and Jefferson was neither the first (4) nor the last to use it. Tocqueville attributed the concept to Catholic interviewees in 1831-32. (5) Three decades later, P.T. Barnum derided religious superstition while endorsing churchstate separation. (6) In 1875, President Grant picked up, the line in opposing government funding for parochial schools. (7) Many years later, Democratic presidential candidates Al Smith and Jack Kennedy each professed their devotion to an "absolute" separation of church and state. (8) And in 1878 and again in 1947, the United States Supreme Court quoted Jefferson's letter and elevated what may have been a popular slogan into an apparently justiciable concept. (9)

   Importation of a separationist mind-set into federal constitutional law nevertheless was, and is, deeply troubling to many. A chief concern has been that a separation principle produces too many restraints on government action that redounds to the benefit of religion, to a point where it indicates or dictates a secular society hostile to religious liberty. Largely for that reason, Everson rivals Marbury among the opinions most vilified by those who support the result reached.

   Hamburger adds other objections. He concludes that "the constitutional authority for separation is without historical foundation." (10) (p. 481) It may not be entirely clear what brand of church-state "separation" is being eliminated here, but the author does deny that it was a popular slogan or principle before the First Amendment was ratified. The project is much more ambitions than contributing to an understanding of the founding generation, however. Separation also attempts to track American use of the metaphor during the fourteen decades between Jefferson's letter and the decision in Everson. And it turns out that many lesser-known proponents of church-state separation are now far less reputable than even P.T. Barnum. So Hamburger's work not only cabins the historical roots of separation rhetoric, it also taints them. His research places Jefferson's views at the margins and associates subsequent adherents with bigotry, usually of an anti-Catholic stripe; (11) with "theological liberals, especially anti-Christian 'secularists'"; and with a particular vision of religion that emphasizes the individual over hierarchy and institutions, (pp. 10-11, 14-16) For Hamburger, then, church-state separation might be a useful concept in some respects, but state forever separate,"). It is not clear whether Grant was one of Barnum's "sucker[s]." "separation ought not be assumed to have any special legitimacy as an early American and thus constitutional idea. On the contrary, precisely because of its history--both its lack of constitutional authority and its development in response to prejudice--the idea of separation should, at best, be viewed with suspicion." (12) (p. 483)

   To evaluate such claims about the historical or constitutional authority for "the idea of separation," we need to consider the ways in which the author chose to examine the phrase in question. Many methods were available, and there is certainly no one "correct" way to study the history of an idea. But just as surely, some approaches are more relevant to modern constitutional law than others. Separation does not directly defend its relevance to today's lawsuits, which might not be the author's concern. By isolating the book's method of study, however, we can make our own judgments.

   It seems that Hamburger's methods and sources contribute to at least three perspectives on "separation of church and state": (1) As rhetoric or slogan. Hamburger's analysis is plainly, even primarily, about the history of separation rhetoric, its popularity, and the motives of its sloganeers. From this vantage, "separation" is easy to see but probably least significant to constitutional law. (2) As concept or general principle. Also explored is the general idea and rationale expressed by church-state "separation." This conceptual angle is related but not identical to the study of rhetoric and slogan--insofar as it is possible to distinguish ideas and principles from their authors and adherents. General principles are perhaps more difficult to pin down than are sloganeers, and general principles sometimes seem too abstract to resolve concrete constitutional problems. But their use in adjudication is apparent even if their clarity is not: to elaborate constitutional text, courts often employ principles; and these principles are commonly informed by historical sources close to the time at which the text was adopted, by experience since then, or by both. Separation therefore bears on this sort of decision-making. (3) As program, rule, or agenda. Finally, segments of the book suggest more specific ramifications for a separation principle or concept. Granted, Hamburger does not issue a discrete and programmatic definition of "separation," (13) which might be a function of his focus on rhetoric and concepts, or simply vagueness on the part of those who employed the phrase. Still, the book provides some information on the agenda of those who by 1791 opposed existing state relationships with religion, and those who thereafter touted "separation" as a matter of effective rhetoric or guiding principle.

2. REVIEW AND SUPPLEMENTAL THOUGHTS, IN TWO CHRONOLOGICAL STAGES

   The analysis below proceeds in two stages: up until the generation that ratified the First Amendment (which obviously can inform originalist evaluations of that text), and then after (which is not so plainly within the boundaries of conventional interpretive sources). A concluding section adds some broader comments on the relevance of Hamburger's account to today's constitutional law.

   1. THE SETTING FOR THE ESTABLISHMENT CLAUSE

      Separation's first principal question is "whether separation was the religious liberty protected by the First Amendment," (p. 9) and the book beans by exploring the rhetorical (dis)use of the phrase prior to ratification of the federal Bill of Rights. Here Hamburger" (14) consults the. written records of Christian "religious dissenters" (14) and their opponents, primarily in America and England. These sources provide fascinating examples of rhetoric dating to the sixteenth century, and Hamburger does the curious a favor by providing extensive quotations from surviving tracts.

      On this matter, Separation's essential finding is that pre-Amendment religious dissenters rarely called for a "separation of church and state" much less a "separation of religion and government." Instead, "separation" was a goal that dissenters were occasionally and unfairly accused of seeking. For example, at the end of the sixteenth century Richard Hooker alleged that English dissenters had implied the untenable principle "that the Church and the Commonwealth are two both distinct and separate societies ... and the walles of separation between these two must for ever be upheld." (p. 36) On this side of the Atlantic, evangelical dissenters were sometimes indicted for proposing a separation of all religion and government. This attack was probably quite effective, assuming the audience believed that the charge was accurate and that social order and civil government depended on religion and a resulting morality. (p. 66) Secular reason and government power might still skirt chaos...