Separation of Church and State.
Cambridge, Mass.: Harvard University Press, 2002. 492 pages. Notes, index.
$45.00 (cloth), ISBN 0-674-00734-4 .
Mark D. McGarvie , Adjunct Professor of History, University of Richmond,
and Golieb Fellow in Legal History, New York University School of Law,
Was the Constitution Rewritten by Anti-Catholics?
Approach to the Church-State Controversy
In this study, Philip Hamburger, professor of law at the
University of Chicago, seeks to present the history of an idea, separation
of church and state, over time. He begins with a cursory examination of
the drafting of the United States Constitution, and finds that there is
support for neither of the assertions that the founding document separated
church and state nor that its drafters intended such a separation. He
contends instead that the Constitution addressed a different concern,
religious liberty, and argues that the idea of separation of church and
state arose only in the mid-nineteenth century, in the context of intense
anti-Catholicism, as a means of both protecting Protestant freedoms and
acculturating recent Catholic immigrants.
With this book, Hamburger joins a passionate debate about
the meaning of religious freedom currently being waged in academic,
political, and legal communities. Since the 1960s, members of the
"religious right" have argued that federal law's proscriptions of
governmental support of religion were intended as nothing more than a
prohibition of state preference for one Christian denomination over
another. From their perspective, America always was and should be a
"Christian nation." Although Hamburger does not endorse this position, his
book, in removing "separation of church and state" from the Constitution,
provides support for the position of the religious right. This is probably
an unintended consequence of his work. More likely, Hamburger hopes to
resolve the academic and legal argument over the scope of federal
constitutional law in this area by knocking one position--that favoring a
strict separation--right out of the box. He fails to do so.
Even in the brief distillation of Hamburger's work
presented above, several problems should be readily apparent. First,
Hamburger limits his constitutional argument to the First Amendment.
Although that amendment contains no language separating church and state,
it may logically be argued that separation of church and state derives
naturally from the protection of religious freedom or is necessary to
secure the right listed in the First Amendment. This reading is consistent
with expressions of the Founders, especially James Madison, to which
Hamburger gives confusing coverage. More critical is Hamburger's failure
to address more direct language in the founding document. The Federal
Convention adopted the language of the prohibition on religious tests in
Article VI with almost no dissent. Yet, the controversy, primarily
fomented by established clergymen during the ratification controversy of
1787-1788, when the drafters' intents and their philosophical reasons for
the position were clarified, led the drafters at the First Congress to
craft the First Amendment, which accepted religion as a private concern,
appropriately separate from public governance.
Nobody has ever claimed that the Constitution is or should
be a complete document. Enforcement of the Constitution depends upon
reasonable and logical interpretation. Take, for instance, the protection
of privacy rights articulated by Justice William O. Douglas in his opinion
for the Court in Griswold v. Connecticut. Nowhere are such
rights explicitly listed in the Constitution, but, as Justice Douglas
noted, just what is protected by the protection of religious freedom if
the police are free to stand outside churches on Sunday mornings checking
off names of attendees? Hamburger seems unwilling to accept this
significant judicial role in defining constitutional freedoms. He
castigates late-nineteenth-century and twentieth-century judges for
reading pervasive cultural values and beliefs into the nation's primary
laws, noting with disdain (p. 446) that "[e]ven state courts were not
immune to the culture of Americanism." In adopting this perspective, he
seems to resent the significant role that cultural values play in judicial
interpretation of the law. Moreover, by looking only to the First
Amendment and later decisions regarding it, he misses the vital role
played by the Contract Clause and the No Religious Tests Clause in the
separation of church and state in the Early Republic.
Many specialists in legal history and the history of ideas
have documented how the efforts of Jeffersonian liberals transformed
American culture from a Christian communitarian society valuing social
conformity into a rabidly individualistic society in which capitalistic
free enterprise provided the ethics and values of social intercourse.
Hamburger misses the significance of this cultural transformation and its
relationship to the process of disestablishment. The privatization of the
churches and their removal from quasi-governmental functional
responsibilities is part of this larger cultural transformation, which
occurred before Andrew Jackson's presidency (1829-1837). Constitutional
law played a vital role in this transformation. However, the most
important constitutional provision for this purpose was not the First
Amendment, but rather the Contract Clause (Art. I, sec. 10). State and
federal judges restricted the scope of government action in respect of
private contracts, including corporate charters. Increasingly after 1790,
churches assumed the corporate form to protect their assets and their
abilities to proselytize. In doing so, they implicitly assumed a "private"
status distinct from public institutions, even in states which still
Just as serious a problem is Hamburger's misunderstanding
of the history of disestablishment--the process of separating church and
state in the Early Republic. Establishment laws were found in eleven of
the thirteen colonies before the Revolution and in a majority of the
states when the Constitution was framed in 1787. Churches functioned as
semi-public institutions to instill morality and moral values into the
public, to care for people's souls, to educate the young, and to tend the
poor and the sick. Creatures of colonial and later state law, the
established churches were not directly affected by the federal
Constitution, though the document did give expression to ideas and values
that ultimately would prove irreconcilable with established religion.
Disestablishment occurred during a period spanning more than five decades
(1776-1833) and on a state-by-state basis. Disestablishment embroiled the
citizenry in an emotionally intense and intellectually exciting debate
over the new society's values and institutions as it redefined churches as
private corporations. In these state disestablishment struggles, Hamburger
could find many references to the separation of church and state and the
necessity of making that separation. In the process, he would have learned
from that evidence that "separation" as much as "religious freedom" was a
vital concern early in the nation's history.
Hamburger not only ignores all the disestablishment battles
waged in the various states, he also overlooks the debate over cultural
values that those battles addressed. When examining the Early Republic,
rather, he focuses on the Constitution itself and on the role of
dissenters (Protestant Christians belonging to non-established churches)
in securing protection for religious liberty. By focusing on dissenters,
he writes the more radical non-sectarian liberals out of his history. They
also certainly sought separation of church and state by the late 1700s,
and many worked successfully in their own states to achieve that goal. The
noted historian Sidney E. Mead argued convincingly, as long ago as 1963,
that the protection of religious liberty could not have come about by the
efforts of either the dissenters or the liberal humanists alone; rather, a
tentative alliance between them was needed to achieve the first step of
disestablishment--the Constitution's protection of religious freedom.
Hamburger correctly asserts that all the dissenters wanted was the freedom
to practice their religion without state preference for any denomination.
They never sought to divorce Christian beliefs, values, and ethics from
the public institutions of the new society. But, as Mead recognized, the
dissenters' actions constitute only part of the story; by premising his
understanding of the Constitution (and of its framers' intent) entirely on
the dissenters' attitudes and goals, Hamburger misses important historical
evidence that might have compelled him to reconsider or recast his thesis.
Hamburger's primary thesis--that during the latter half of
the nineteenth century anti-Catholicism spawned a reconceptualization of
the meaning of religious freedom into a doctrine of separation of church
and state--depends on his establishing his premise, that the Early
Republic never envisioned a separation of church and state. Unfortunately
for the success of Hamburger's interpretative enterprise, the fatal flaws
afflicting the premise render unconvincing the proof he asserts in support
of his thesis. To be sure, he does provide a good sense of the historical
context for the idea of religious liberty. Even so, his use of theological
and political scholarship from the fifteenth through seventeenth centuries
(during which era religious liberty was understood within a framing
context of religious establishment) cannot stand in for the ideas and
motivations of historical actors of the late eighteenth century. For this
most relevant period, as noted, Hamburger relies only on the words of a
few dissenters; though he mentions Thomas Paine and Thomas Jefferson, he
marginalizes them as minor players in the drafting of the Constitution.
That specific point may be true, but their ideas were hardly insignificant
or unrepresentative, as further research into pamphlets, newspapers, and
letters of the period would show. Furthermore, James Madison, Jefferson's
partner-in-arms in Virginia's protection of religious freedom, made his
position on separation known in his "Memorial and Remonstrance Against
Religious Assessments" (1785).
Various state ratification debates, which raised the need
for a bill of rights, referenced Jefferson by name and drew upon more
radical and libertarian ideas than Hamburger acknowledges or wishes to
address. Hamburger asserts further that an ideological debate between
humanistic liberals and dissenters erupted only in the mid-1800s, and he
subordinates the religious debates of the 1790s and early 1800s to the
broader political contests pitting Federalists against Republicans. In so
doing, he seems unaware that Timothy Dwight, president of Yale and a
leading defender of establishment, perceived his enemies to be not the
dissenting clergy who supported Jeffersonian candidates, but those secular
humanists whom he castigated as liberals, Deists, agnostics, nothingarians,
Hamburger repeatedly asserts that the early Republic's laws
recognizing religious freedom only limit government, not the churches (pp.
94, 107). He concludes from this claim that the people of the Early
Republic never intended to separate church and state nor to remove
religion from the governing of the Republic. This bold assertion ignores
the most plausible explanation: that private corporate churches were not
subject to legal restraint, as were governmental institutions. Hamburger
misses a crucial point: that during the Early Republic, Americans
transformed their churches into private corporations. In fact, in this
connection, at times Hamburger fails to recognize the significance of his
own text. On page 182, he writes that James Madison sought to limit all
"corporations," ecclesiastical or otherwise, from accumulating property in
perpetuity. He correctly notes that this aim is more a matter of property
law than a reflection of Madison's distrust of churches holding property.
But he then misses the more important fact: that Madison perceived
churches not as semi-public institutions necessary for instilling virtue
(as they were understood throughout the colonial era) but as private
corporations pursuing their own agendas distinct from, perhaps even
antithetical to, public governance. By ignoring this crucial point,
Hamburger also misses how and why this transformation occurred. Further,
he fails to see how, as private corporations, churches had to be excluded
from government and removed from their colonial roles in providing
education, poor relief, and community record-keeping.
Hamburger's proof of his major thesis concerning
anti-Catholicism is no more convincing than that offered in support of his
premise. His "anti-Catholicism" argument appears in chapter 8, with proof
limited to lengthy references to New York and a more general discussion of
New England. To be sure, as Hamburger shows, the historical evidence of
the latter half of the nineteenth century abounds with disparaging
comments aimed at Catholics, but these alone do not persuade the reader
that anti-Catholicism forced a reconsideration of the meaning of
religious freedom. Hamburger further asserts that anti-Catholicism was so
strong that it united not only Protestants of different denominations, but
also racist nativists and polarized extremists, such as the Ku Klux Klan
and liberal atheists. In this, Hamburger may be attempting an argument
paralleling one made by Edmund S. Morgan to explain a different time and
place: that antebellum white southerners defined "blackness" in such a way
as to unite all non-black people, despite their great differences in
wealth, attitudes, and beliefs, into a white citizenry that supported
slavery. And yet Morgan mounted massive proof of his historical actors'
thoughts, motivations, and concerns to support his conclusion--all of
which are lacking in Hamburger's study.
Hamburger asserts further that, by the 1930s, the public's
new perception of religious liberty as including the separation of church
and state forced itself upon a Supreme Court that acceded to the pervasive
"culture of Americanism." He concludes that, in its expansive reading of
the Fourteenth Amendment to prevent states from legislating in matters of
religion, the Court "drew upon a context that had little connection to the
Fourteenth Amendment, that was as much cultural as it was legal, and that
concerned religion more than race" (p. 439). The Court's adoption of
bifurcated review was probably more a matter of political and social
expediency than one of well-reasoned analysis of the Constitution. Yet
Hamburger's summary of the Justices' thought processes renders them mere
puppets of public opinion. This view of the Justices pales by comparison
with that offered in G. Edward White's The Constitution and the New
Deal, which provides a thorough and enlightening discussion of this
important and controversial period of American legal and constitutional
history. Once again, Hamburger's assertion that the federal courts
imposed a doctrine of separation of church and state on the states in the
twentieth century misses the important state-by-state process of religious
disestablishment that occurred from 1776 to 1833.
Despite this book's flaws, it contains some good history.
Hamburger skillfully develops the ideological debates of the late
nineteenth century, which sparked conflicting proposals to amend the
Constitution to clarify what constitutes religious freedom. He also offers
some valuable insights, as when he notes that Thomas Jefferson had a
tendency "to give words and phrases new contexts in which they acquired
fresh, often polemical significance" (p. 147). He should be applauded for
trying to make sense of a difficult historical problem made even more
troublesome by its relevance to, and its entanglement with, current
In addition, he deserves credit for aggressively using
broad descriptive terms, sometimes risking the sacrifice of historical
accuracy in the details to try to further his readers' understanding of
his broad arguments. To be sure, such terms as "liberals," "secularists,"
"Protestants," "Christians," and "nativists" describe people with widely
divergent and sometimes overlapping values and beliefs. Yet Hamburger uses
these terms to define attitudes of people whom he juxtaposes in opposition
to one another. Ultimately, his terms do help to define groups of actors
in a complex historical debate over ideas. An author should be granted
leeway in trying to describe groups of historical actors who may have
shared certain ideological proclivities, but were nonetheless culturally
and politically diverse.
Even so, these good qualities are not enough to overcome
the essential weaknesses of Hamburger's book. Its thesis fails to
illuminate his subject despite nearly five hundred pages of explanatory,
densely documented text. Its only value is to be found in the historical
record and anecdotes it provides rather than its attempt to reconfigure a
complex historical issue.
. Griswold v.
379 U.S. 926 (1964).
. See, e.g., Joyce Appleby, Capitalism
and a New Social Order (New York: New York University Press, 1984);
Michael Grossberg, Governing the Hearth (Chapel Hill: University of
North Carolina Press, 1985); and Gordon S. Wood, The Radicalism of the
American Revolution (New York: Alfred A. Knopf, 1992).
. Sidney E. Mead, The Lively Experiment (New
York: Harper & Row, 1963), passim.
. On this point, see Colin Wells, The Devil
and Doctor Dwight: Satire and Theology in the Early American Republic
(Chapel Hill: University of North Carolina Press, 2002).
. Edmund S. Morgan, American Slavery, American
Freedom: The Ordeal of Colonial
(New York: W. W. Norton, 1975). A similar approach for a later period may
be found in C. Vann Woodward, The Strange Career of Jim Crow,
anniversary edition (New York: Oxford University Press, 2002).
. G. Edward White, The Constitution and the New Deal
(Cambridge, Mass.: Harvard University Press, 2000).
Mark D. McGarvie is the author of One Nation Under Law:
America's Early National Struggles to Separate Church and State
Library of Congress
Call Number: BR516 .H19 2002
* Church and state--United States.
Citation: Mark D. McGarvie . "Review of Philip Hamburger,
Separation of Church and State," H-Law, H-Net Reviews, March, 2003. URL:
“[Hamburger] argues that
the religion clauses of the First Amendment did not create a ‘separation’
of church and state… The true source of separationism was a massive
reorientation of political theory among ‘liberal’ Protestants in the
nineteenth century (p. 193), which posited Catholics and their priests as
antithetical to American democracy…[Hamburger’s] passionate critique…force[s]
the reader to confront the legacy of religious prejudice and its
relationship to constitutional law.”
Sarah Gordon, review of
Separation of Church and State, by Philip Hamburger, The
American Historical Review 108 (October 2003): 1142-1144.