Tuesday, September 30, 2008

My Review of Hamburger's "Separation of Church and State"

Check out this article on Separation and the Founding by Steven Waldman where he writes:

The evangelicals provided the political muscle for the efforts of Madison and Jefferson, not merely because they wanted to block official churches but because they wanted to keep the spiritual and secular worlds apart. "Religious freedom resulted from an alliance of unlikely partners," writes the eminent historian Frank Lambert in his excellent book The Founding Fathers and the Place of Religion in America. "New Light evangelicals such as Isaac Bachus and John Leland joined forces with Deists and skeptics such as James Madison and Thomas Jefferson to fight for a complete separation of church and state."

Now compare that to Philip Hamburger's thesis in his book, Separation of Church and State where upon examining the writings of dissenters -- "hundreds upon hundreds of dissenting petitions, sermons, pamphlets, newspaper essays, letters, and memoranda" -- Hamburger concludes the dissenters "clearly did not make separation one of their demands." (p. 63)

Well who is right? It's a complicated story. Hopefully this post will help clarify.

Hamburger's basic thesis is this: Before the early 19th Century, hardly anyone argued for religious liberty (or "religious rights") in terms of "Separation of Church and State." Rather they sought religious liberty and disestablishment, not "Separation." At this point, one hungers for a meaning of "Separation." For instance when Roger Williams first advanced the term or when Jefferson wrote about Separation to the Danbury Baptists, what did they really mean, and how would it impact real cases, especially today? Though Hamburger really doesn't answer, he would argue (in not so many words -- he could have done a better job articulating this), such an exact definition need not be given as of yet. Prior to the 19th Century, advocates for religious liberty rejected the WORDS or the PHRASE "Separation of Church and State" whatever it might mean.

However, a clear answer really would have helped. As Thomas West notes:

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.

Historical uses of the phrase "Separation of Church and State"

Indeed, Hamburger goes through what is supposed to be an exhaustive analysis of the use of that phrase which I will summarize. Roger Williams coined a similar term ("wall of Separation between the Garden of the Church and the Wilderness of the world"). Williams, in mid-17th Century, was one of the first Protestant dissenters to argue for religious liberty. Yet, he also argued for "Separation." Hamburger asserts Williams's case for Separation "needs to be understood as part of his relentless quest for religious purity." (p. 51) (Hamburger demonstrates that Williams was a bit of a fanatic, obsessed with keeping true religion pure from corrupt, worldly influences.) And that "Baptists dissenters, such as John Callender in 1739 and Isaac Backus at the end of the century, had nothing but praise for Williams as an opponent of establishments, but...they said nothing about his ideas concerning...the Separation of the Church from the world." (p. 52)

Next Hamburger moves to British Whig, James Burgh, who in 1767 stated "that the less the church and the state had to do with one another, it would be the better for the both." (p.56) Later Burgh urged future inhabitants of Britain to "[b]uild an impenetrable wall of separation between things sacred and civil." (p. 57)

Then Hamburger notes a Virginia memorial of 1783 from the General Association of Separate Baptists who prayed "that no law may pass, to connect the church & State in the future." (p. 58) Yet, that was the only instance they used such a phrase in the 18th Century.

Hamburger also identifies the Marquis de Condorcet of France, who in 1785 advanced a theory to "separate religion from the State." (p. 60) And Thomas Paine who in 1794 in The Age of Reason Paine wrote of "the adulterous connection of Church and State." Finally Hamburger notes the "notorious Unitarian" Joseph Priestly who (quoting Hamburger) "acknowledged the sociological connection between church and state but denied that it any longer justified an establishment." (p. 75) Priestly's argument, according to Hamburger, "required all of the dexterity and doctrinal laxity for which he was infamous...." (Ibid)

So how does Hamburger deal with these historical uses of the phrase? These thinkers

failed to persuade...their contemporaries to adopt any such idea. American religious dissenters were not shy about demanding their freedom....[T]hey wrote incessantly about their religious liberty and created a highly successful popular movement to achieve this end. Accordingly, if the separation of church and state had been one of their demands, one would expect to find this principle discussed repeatedly in their writings. (p. 63)

Upon examining the writings of dissenters -- "hundreds upon hundreds of dissenting petitions, sermons, pamphlets, newspaper essays, letters, and memoranda" -- Hamburger concludes the dissenters "clearly did not make separation one of their demands." (Ibid) Finally, Hamburger notes it is intuitive that dissenters wouldn't demand Separation because the position "seemed to evince hostility toward churches and their clergy." (p. 64)

Hamburger asserts that the phrase "Separation of Church and State" became popular in political parlance after 1800 specifically as a way for Republicans to silence Jefferson's Federalist clergy critics, who were preaching against him from the pulpit. So for instance when we see New York Republican Tunis Worthman's admonition to Christians given in 1800 that "it is your duty, as Christians, to maintain the purity and independence of the church, to keep religion separate from politics, to prevent an union between the church and the state, and to preserve your clergy from temptation, corruption, and reproach..." (p. 121), we are reading, according to Hamburger, not sincere convictions, but a clever political argument attempting to browbeat clergy into silence.

Hamburger is very hard on Jefferson, a man "bolder with a pen than a sword" (p. 145), whom Hamburger essentially accuses of being a sophist intent on manipulating words to fit his political desires and anticlerical prejudices. Hamburger notes that the Danbury Baptists, far from celebrating his "Separation of Church and State" letter, ignored it.

Madison too, doesn't escape Hamburger's criticisms. Indeed, Madison talked of "Separation" as a way of understanding religious rights. Hamburger notes among other things, Madison's Detached Memoranda and his 1822 letter to Edward Livingston where Madison states: "Every new and successful example...of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together."

Hamburger frames Madison's call for "Separation" by viewing it, not as a proper understanding of the First Amendment, but as part of an evolving Republican tradition, indeed, one that didn't start to evolve until after 1800 and whose genesis was to silence Federalist clergy.

Problems with Hamburger's Thesis

As Thomas West alludes, there is a semantical problem with his thesis. He is too hung up on the phrase "Separation of Church and State." While it may be true that such particular phrase wasn't commonly used before 1800, religious dissenters did support other phrases and concepts which more or less meant (or plausibly meant) the same thing.

Religious dissenters asked for more than just religious liberty. As Hamburger notes, they also sought some type of equality under the law. And they did endorse Madison's "no cognizance" standard ("that Religion is wholly exempt from [civil society's] cognizance") from his Memorial and Remonstrance. And dissenters supported Jefferson's Virginia Statute on Religious Freedom, which revolutionary work receives only cursory treatment in Hamburger's book. Hamburger notes Madison's "no cognizance" standard is "quite different from a separation of church and state." Yet, even Robert Bork, in this absolutely fawning review of Hamburger's book, states "[i]n his 1785 'Memorial and Remonstrance,' [Madison] argued that religion and government should have nothing to do with each other." So it appears that dissenters did endorse something like separation even if not commonly expressed in so many words.

Hamburger and Bork reply that the language in the Establishment Clause is less sweeping than Madison's "no cognizance" standard.

Madison's argument in 1785 seems to be that whenever government and religion get involved with one another, strife will invariably ensue because government ends up supporting *some* kind of religion to the detriment of others. As he writes in the Memorial:

Because [A Bill for Establishing a Provision for the Teachers of the Christian Religion] will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.

Which leads to another criticism: Though Hamburger's examination of 18th Century uses of the phrase "Separation" was supposed to be exhaustive, apparently it was not. In reading James H. Hutson's quote book, I caught a quotation by John Dickinson from 1768, not mentioned by Hamburger, which argues for separation for very similar reasons given in the Memorial and Remonstrance:

Religion and Government are certainly very different Things, instituted for different Ends; the design of one being to promote our temporal Happiness; the design of the other to procure the Favour of God, and thereby the Salvation of our Souls. While these are kept distinct and apart, the Peace and welfare of Society is preserved, and the Ends of both are answered. By mixing them together, feuds, animosities and persecutions have been raised, which have deluged the World in Blood, and disgraced human Nature.

John Dickinson, writing over the signature, "A.B" Pennsylvania Journal, May 12, 1768.

I seriously wonder how Hamburger would explain that away, which is what he does whenever confronted with the numerous uses of the phrase "Separation of Church and State," minimizing their importance, explaining them away by the use of context.

How to understand the principle of "Separation of Church and State" in the Constitution:

One value that Hamburger's book offers (and Akhil Amar's book on the Bill of Rights) is that it shows "Separation of Church and State" really doesn't work as an individual right, which is how the Supreme Court, post-Everson uses it.

Clearly, the US Constitution does separate Church and State in the same way that it Separates the Powers in government. Such a Separation of Church and State is not just found in the Establishment Clause, but in the Free Exercise Clause, Art. VI's "No Religious Tests Clause," and the fact that religion is left entirely unendowed in a Constitution of very limited enumerated powers. Yet, Separation of Powers is not an absolute rule and it is not an individual right either. We can say the same about Separation of Church and State.

Individual rights, especially those that are incorporated through the 14th Amendment against state and local governments, are best understood as liberty and equality rights. Whereas the Free Exercise Clause clearly relates to a liberty right, the Establishment Clause and the doctrine of Separation of Church and State have often been used to vindicate religious equality rights. Perhaps it would be better then, if, as Akhil Amar argues, the Equal Protection Clause is used to vindicate such claims (the Supreme Court has an odd history of doing the right thing through the wrong clause -- for instance, incorporating the Bill of Rights through the Due Process Clause, when the Privileges or Immunities Clause is where incorporation is supposed to occur).

(See Phillip Munoz's argument that Madison's Memorial and Remonstrance posits such a non-discrimination standard.)

Such a non-discrimination standard would mandate government neutrality between the religions (both the conventional and unconventional ones) and, if atheism and agnosticism count as "religions," which they probably do, between religion and irreligion. This already looks similar to what the Supreme Court, post Everson, has the Establishment Clause doing.

But such a standard would allow, indeed would mandate that religion not be excluded from government aid programs, offered on generally applicable (secular) grounds, with school vouchers as the classic example.

To conclude, whatever side of the divide one is on, because of its meticulous research and challenging assertions, this book belongs in the collection of any serious student of the history of the Establishment Clause and the doctrine of Separation of Church and State.


Charles said...

Not being a "serious student" of the topics, my reading beyond selected relevant SCOTUS opinions in quite limited. But FWIW considering that caveat, I think this post is is the most illuminating thing I've read on the topic. Thanks for it - and for all the others as well; are these a prelude to a book?

I especially appreciated your discussion of EC vs EP. Notwithstanding J. Scalia's somewhat mocking dismissal of it, I prefer J. O'Connor's EP-based concurrence in Lawrence to the SDP-based main opinion because I think it captures the non-discrimination theme. And although J. O'Connor bases the "endorsement test" (which I also prefer) part of her concurrence in Lynch on the EC, I do see that the EP probably works at least as well. Not that that view is likely to prevail given the history of opinions to date.

One quibble. Whether "atheism" (or for that matter, any other "ism") is or isn't a "religion" depends critically on how "atheist" is defined. If one assumes the "literal" definition - "not theist", it clearly isn't. Hence, IMO a statement on the issue with the term undefined is inherently inaccurate.

- Charles

Jonathan Rowe said...

Thanks. No plans for a book on Separation; maybe an article or two.

Phil Johnson said...

Nice job, Jonathan. Thanks for your efforts in producing this elaboration.
You seem to allude to the idea that the meanings we apply to words today in comparison to what was meant during the decades surrounding the Founding must be seen in different lights. I agree with that 100% and it is one of my pet peeves.
Even more specifically, it appears you are showing that our ideas of what it means to speak of the "Separation" of church and state have evolved over the generations since those days so that we see that our Founders could not have felt what we feel today.
But, I wonder if you could elucidate a bit on this statement you make, "One value that Hamburger's book offers (and Akhil Amar's book on the Bill of Rights) is that it shows 'Separation of Church and State' really doesn't work as an individual right, which is how the Supreme Court, post-Everson uses it." (My emphasis)

Charles said...

I'll of course leave answering Mr. Johnson's query to Mr. Rowe, but will mention that I thought that perspective especially useful in understanding why decisions based on the EC often appear to be a bit of a stretch, notwithstanding that I personally applaud them.

- Charles

Charles said...

Well, actually I will elaborate just a little.

A common rejoinder to objections about school sponsored prayer, "under God" in the pledge, et al is that one doesn't have the (individual) right not to be annoyed, offended, made uncomfortable, etc. While emotionally I find that rejoinder rather irritating, it's never been quite clear to me what a rational counter might be. The endorsement test seems to head in the right direction, but it still seems to require an extra stride to get from endorsement to establishment.

But with an EP perspective, a plausible path emerges. Endorsement suggests preference which in turn suggests at least the possibility of preferential treatment, AKA, not equal protection.

An obvious rejoinder to that is "okay, but you have to wait for the preferential treatment". So, that path doesn't necessarily settle any specific conflict, but still it might be a useful arrow to have in one's quiver.

- Charles

Brad Hart said...

"Upon examining the writings of dissenters -- "hundreds upon hundreds of dissenting petitions, sermons, pamphlets, newspaper essays, letters, and memoranda" -- Hamburger concludes the dissenters "clearly did not make separation one of their demands." (Ibid) Finally, Hamburger notes it is intuitive that dissenters wouldn't demand Separation because the position "seemed to evince hostility toward churches and their clergy."

Jon, I wonder if dissenters neglected to make separation one of their demands due to the fact that the role of religion was primarily left to the states? Does Hamburger discuss this at all? I know that Waldman brought the issue up in his book, Founding Faith.

Regardless, I think you are spot-on in your assessment. Excellent post!

Phil Johnson said...

Thanks, Charles. That makes good sense.