Friday, October 22, 2010

Philip Hamburger's Weakest Argument Against SOCAS

Note: I like Hamburger's book. I think it deserves much of the praise it got and that he is a top notch scholar. However that doesn't make it immune from criticism or serious error.

Jim Lindgren, no religious fanatic he (a self described atheist), and another top notch scholar (in my opinion; he wouldn't be blogging at Volokh if he weren't) has a post which peddles the weakest aspect of Philip Hamburger's work.

The following is an email I sent Prof. Lindgren. (I don’t expect a reply because I’ve sent him a few other emails over the years to which he didn’t reply):


In a general sense, I like Hamburger’s book and endorse the idea that “SOCAS” doesn’t properly vet constitutional religious rights, especially those that incorporate against state and local govts. I also think the research Hamburger et al. did with regards to the KKK and their anti-Catholic bias and endorsement of the separation principle is interesting.

However, to try to bring that up in an argument over the proper way to interpret the Constitution is weak. It’s the genetic fallacy/poisoning the well. And no, the evidence does not show Justice Black’s (or Rutledge’s) “Klan” mentality led them to decide the way they did in Everson.


Jon Rowe

Ed Brayton did a post on the matter a few years ago which raises a similar point.

I also noted on this First Things thread, this argument isn't just "poisoning the well"/the genetic fallacy, it's also a non-sequitur. That is, even IF Black was an anti-Roman Catholic bigot when Everson was decided, it doesn’t follow that he would deny Roman Catholics their religious rights.

John Adams was an anti-Catholic bigot, but, nonetheless believed in respecting the religious rights of Roman Catholics.

“I do not like the late Resurrection of the Jesuits. They have a General, now in Russia, in correspondence with the Jesuits in the U.S. who are more numerous than every body knows. Shall We not have Swarms of them here. In as many shapes and disguises as ever a King of Gypsies, Bamfield More Carew himself, assumed? In the shape of Printers, Editors, Writers School masters etc. I have lately read Pascalls Letters over again, and four Volumes of the History of the Jesuits. If ever any Congregation of Men could merit, eternal Perdition on Earth and in Hell, According to these Historians, though like Pascal true Catholicks, it is this Company of Loiola [Ignatius Loyola -- Ed.]. Our System however of Religious Liberty must afford them an Assylum. But if they do not put the Purity of our Elections to a severe Tryal, it will be a Wonder.”

- John Adams (1735-1826), Letter to Thomas Jefferson, May 6, 1816, quoted in The Founders on Religion: A Book of Quotations, James H. Hutson, editor (Princeton University Press: 2005), 44-45.


jimmiraybob said...

I have to tell you, I’m not sure that Mr. L has made a fair representation of the book in his bulleted summary. There’s a Google Books version on line and I’ve been skimming through what's available in Chapter 13 (Differences) of Section IV (Late Nineteenth- and Twentieth-century Constitutional Law) and am fascinated by the storyline – it’s more complex and interesting than I would have imagined. Hugo Black is featured prominently in various places but I haven’t read anything about his involvement yet.

I think that my biggest surprises are: 1) that there was so much activity involving the principle of separation in the early 20th century, 2) that there was a secular formulation (separation applied across the board with respect to religious affiliation) and a Protestant formulation (separation was fine as long as it kept the Catholics out of government and teaching in the public schools, where Protestants maintained a strong presence, but separation didn’t apply to the Protestants), and 3) the Protestant roots of the KKK and predecessors. Man, anti-Catholic hatred and bigotry was out of control (nativist newspaper headlines, “Alice – the Cincinatti Convent Slave” and “Rome, the Rum Dealer”). This is proto-KKK.

There’s apparently more intrigue involving Masons and Jews and who knows who else, but I don’t think I can keep going tonight. There’s even at least one gunfight in Waco, TX (atheist rabble-rousing newspaper editor gets shot in back, wheels around and unloads his revolver into his assailant and....well, I don’t want to spoil the whole thing). No word on the religious affiliation of the assailant but I'm guessing Baptist. Page 365 for the interested.

A real page turner.

Tom Van Dyke said...

I agree with Jon that Hugo Black's background has nothing to do with the wisdom of the Everson decision. It is indeed "poisoning the well," since 4 other justices [not KKK-affiliated] joined the 5-4 decision.

I dunno what JRB's getting at yet, but on the other hand, Catholicism---Papism---was excluded from John Locke's "Letter Concerning Tolerance" since followers of the Roman Catholic religion owe their first allegiance to a "foreign prince"---their religion over their patriotism, their God over their country.

And John F. Kennedy, as late as 1960, was obliged to declare,

"But because I am a Catholic, and no Catholic has ever been elected President, the real issues in this campaign have been obscured--perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again--not what kind of church I believe in, for that should be important only to me--but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote--where no church or church school is granted any public funds or political preference--and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him."

America's first Muslim president will be similarly obliged to give such a speech. Rock on, y'all, I yield the floor. This is damned interesting. I can't even imagine what the first Catholic president of a Muslim country might say.

Jason_Pappas said...

"John Adams was an anti-Catholic bigot, but, nonetheless believed in respecting the religious rights of Roman Catholics."

I’m always in awe of the degree the key Founding Fathers maintained a commitment to rights even when they are appalled by how some might exercise those rights. I find that most people, today, are puzzled by how one can defend a right that allows a wrong choice (i.e. wrong in the mind of some or even most people).

Jonathan Rowe said...


I agree. That's one reason why I have an issue with "there can be no right to do wrong." If "freedom" or "liberty" means anything it means a right to make mistakes or do wrong.

jimmiraybob said...

I was pretty much getting at what was in the comment - no ulterior motives and no great commentary. I thought that the original source of the discussion (or at least as much of the version as is available at Google) would be of interest to the group here.

It does look like an interesting read.

I was reinforcing Jon's assessment that the substance of the material is interesting - in more ways than I expected - and I do agree that Mr. L's bulleted synopsis poisons the well, intentionally or not. The material in the book is far more detailed and complex than the selected bullet items indicate.

Since I only skimmed a small portion of the book's content I don't know if it too uses Black's association with the KKK to paint Black as a bigot or to place Black's work in the context of the times.

As Ed and Jon point out, Black certainly rose above what would be expected of him given only the impression created by a cursory bomb tossed his way to demean his character (intentionally tossed or otherwise).

In the recently aired God in America, episode 3 or 4 I think, the story's recounted of the Catholic fight to removed the heavily biased Protestant instruction from the public schools. I think that the book gives, among other things, more detail to understand what the struggle among so many different constituencies was about and how the concept has been used in attempts to both expand and restrict expression of conscience.

The bottom line is that the book is different than I expected from having only heard the commentary about it. As to the thesis of the book, I didn't offer any commentary primarily because I haven't read that much of the book but also my intent was not to be argumentative.

(And a gunfight in Waco? Who'd a thunk.)

Jonathan Rowe said...

Interestingly all 9 of the Justices seemed to vote for Black's separation as metaphor concept. The 5 member majority, ironically, voted to let church & state connect in that case. The 4 dissenters wanted the wall higher. Don Drakeman has found, apparently, some dirt on Rutledge. But you aren't going to find it on all 9. And there was ONE Catholic Justice on the Court then as well.

The real error in Everson, as Philip Munoz pointed out in a law review article on the EC, is that it constitutionalized the Founding era Virginia point of view on Church-State issues, when that view was not a consensus.

Daniel said...

It may be the genetic fallacy, but it is not a non-sequitur. If Black was an anti-Catholic bigot, and a Klansman, it is undisputed that the Klan's anti-Catholicism was expressed in their support for separation of church and state.

I'm not convinced that this is the best example of the genetic fallacy. One of the effects of separation as interpreted by SCOTUS was the weakening of Catholic culture as a separate culture. That was the effect that was intended by the Klan, and, I suspect, Hugo Black.

But in throwing around words like bigotry, it is worth noting that we are talking about the age of the melting pot. Irish and Italian communities educated in a separate school system did not melt as well. A single, integrated school system was expected to best serve the needs of a single, national, progressive culture.

Jonathan Rowe said...

I'm currently looking this up, but Justice Black, lapsed Baptist he, during his time on the bench eventually joined the Unitarian-Universalists. He became a lefty liberal, voted in the majority for Brown and other civil rights cases. Even before Hamburger's work, every single lefty liberal law prof. who admired Justice Black and who are disproportionately preoccupied with race, class and gender issues, knew of Justice Black's background in the Klan (like Robert Byrd, Harry Truman and a number of notable national politicians from the South) but viewed him as a redeemed soul because of his committment to lefty liberalism. Say what you want about lefty liberals, but they don't make good Klansmen. If Black did a 180 on his Klan views on race and anti-Semitism (which judging by his SCOTUS decisions, he did) but retained anti-Catholic bigotry, that's unfortunate; but it nonetheless makes it really difficult to paint him as a Klansman who exchanged a white robe for a black as the Hamburger thesis seemingly tries to.

Tom Van Dyke said...

Say what you want about lefty liberals, but they don't make good Klansmen.

The Klan and progressivism. As with most things, it's complicated.