Thursday, March 3, 2022

Article by Philip Hamburger on Justice Barrett

Philip Hamburger's book "Separation of Church and State" turns 20 years old in 2022. Hamburger is a brilliant scholar and Ivy League Professor of Law (Columbia), and as such his work is always well worth engaging. 

But over the years that I've engaged with this work in particular, I've noted how, as meticulously researched as the book is, it makes very contentious, even if interesting arguments. In 2020, writing in Newsweek, Hamburger summarizes his book in the context of an op-ed about Justice Amy Barrett's then confirmation hearings. 

I strongly recommend people read the article for a summary of the book and if further interested in the history of legal church/state relations in America, read his book

His book gores certain oxen and vindicates others. If one is a fan of Justice Hugo Black's opinion in Everson v. Board of Education (1947), one's ox is going to be gored. On the other hand, if one is a Roman Catholic seeking a lower or non-existent "wall of separation" complete with a largely accurate history of how certain forces in America have subjected Catholics to animus, the ox vindicated.

What I find very ironic about Hamburger's "narrative," is that while he notes that America's national government forbids an official establishment of religion (or "law respecting an establishment of religion"), he also concedes America did have a kind of "de facto" Protestant Christian establishment.

But -- perhaps this is a message he didn't intend to impart to religiously conservative Protestants who might be sympathetic to his anti-Everson position -- he makes that de facto establishment look very bad in how they used their political power over church-state relations. He basically tars "Protestant Christian America" with animus or bigotry. 

Now, perhaps "Protestant Christian America" is guilty of such bigotry. World history is replete with examples of sectarian mistreatment among social groups taking place within national boundaries in a variety of different contexts. The problem, as I see it in Hamburger's particular claim, is that such simply isn't relevant to how the Establishment Clause ought to operate today or whether the Everson case was rightly decided. 

There were two poles to the theological-political wings of Protestantism in America: the Right wing, who were more traditionally orthodox (either Calvinistic or some other kind of non-Calvinistic, evangelical types) and the Left who were either Unitarian or doctrinally lax. Often it's hard to tell the difference between the two, because they were all "Protestant Christians" and in many cases they may have attended the same churches. Hamburger clearly goes after the "liberals" more so. One chapter to his book is entitled, "A Theologically Liberal, Anti-Catholic, and American Principle." 

But both wings of Protestantism had one thing in common that arguably united them: anti-Roman Catholic animus. According to Hamburger's narrative, it is this Protestant Christian American anti-Roman Catholic animus that motivates calls for "Separation of Church and State." And all of this then becomes connected to the KKK. 

Indeed, Prof. Hamburger reminds us that "Americans United For Separation of Church and State" was previously "Protestants and Others United for the Separation of Church and State" and that the KKK supported all of this. 

Then, the historical villainy that Hamburger so meticulously documents becomes epitomized in a single figure: Justice Hugo Black, author of the Everson opinion. Justice Black was born in Alabama in 1886 and was raised and educated as a Baptist. Somewhere along the way he joins the KKK, has a distinguished political career, ends up on the Supreme Court of the United States and according to his biographer, older, sometimes attended services, with his wife, at the local Unitarian Universalist Church.

On the Court he votes both FOR Brown v. Board of Education (1954) AND Everson. Justice Black's "liberalism" in life and on the Court -- however "Protestant" it was -- was hardly "Klanish." Even though the facts Prof. Hamburger reports are largely accurate; I see this as the weakest part of his book.

As my friend the late Ed Brayton noted, it's poisoning the well or the genetic fallacy.


Tom Van Dyke said...

No discussion is complete without Blaine

Named after Congressman James Blaine, Blaine Amendments were introduced over 100 years ago, when anti-immigrant and anti-Catholic bigotry were at an all-time high. Initially attempted as an unsuccessful amendment to the federal constitution and then spread to state constitutions, the amendments differed from state to state, but the purpose remained the same: to exclude Catholic influence from the predominantly Protestant public schools. These laws remain on the books in over half of the states, and they are now used to discriminate against any and all religions—not just Catholics. Because they originated in the context of a debate over education, many of them limit educational choices for children, including minority children, children in rural areas, and children with special needs. But their reach extends beyond schools—they have even been used to stop religious groups from helping prevent criminal recidivism.

Tom Van Dyke said...

see also

Anti-Catholicism figured greatly in the revival of the KKK in the 1920s, when Hugo Black joined:

The Ku Klux Klan that surfaced in the 1920s formed the second wave of Klan activity in the United States. Unlike the first emergence of the Ku Klux Klan, formed in the South in 1868 and mainly concerned with keeping black people from exercising their new freedoms, the second wave of the Ku Klux Klan focused their efforts on a wider range of issues. This new wave portrayed themselves as a race-protecting group that “espoused a virulent form of racism, anti-Semitism, anti-Catholicism, and anti-immigrant sentiment.”1 Secondly, they saw themselves as “moral, law-abiding citizens dedicated to political and civil reform, civic improvement, and the defense of traditional American values.”2 The second Ku Klux Klan also differed from the first in that it was spread out all over the United States. The Pacific Northwest was home to a large Klan membership, and for a few years in the early 1920s, Klan members were active in the Oregon State government.

The members of the Ku Klux Klan saw themselves as “real” Americans and protectors of what they saw as the American way of life. Due to their sense of duty, the Klan targeted groups that were not like the majority of white Americans and attacked them. The Oregon School Bill was one way in which they did this.

The Oregon School Bill aimed to close private Catholic schools in Oregon and have the children sent to the public school system.

Jonathan Rowe said...

I have to look up that recent SCOTUS decisions. Did it make Blaine Amendments unconstitutional?

Tom Van Dyke said...

Getting there.

"The U.S. Supreme Court ruled in Espinoza v. Montana Department of Revenue that the application of Article X, Section 6 of the Montana Constitution violated the free exercise clause of the U.S. Constitution. Article X, Section 6, known as the state’s Blaine Amendment or as a no aid provision, prohibited the state from making direct or indirect public fund payments to religious schools."

Tom Van Dyke said...

see also Trinity Lutheran

Missouri's rationale for its decision was based solely on the fact that Trinity Lutheran Church was a religious institution. The state relied on its Blaine Amendment, which explicitly prohibits “aid[ing] any church.” The Supreme Court rejected this argument and ruled that Missouri had violated the Free Exercise Clause. Nov 29, 2017

Art Deco said...

He basically tars "Protestant Christian America" with animus or bigotry.

Which is to day that 19th century Americans generated and lived within a matrix wherein religious opinion mattered to people.

We live at a time suffused with animus, and crudely stated animus for a' that. It has a religious, cultural, and political aspect. It is manifest in schools, which are now suffused with social and cultural propaganda which bears no relationship to the interests or preferences of families.

Art Deco said...

Just to point out about Hugo Black. He was a politician notable as an avid advocate of New Deal legislation, nominated at a time when the constitutionality of much of it was disputed and the same year FDR had attempted to persuade Congress to pack the court. His experience as a judge was limited to a brief stint as a local JP. Six of the ten Republicans remaining in the Senate voted to reject his nomination. It is a nomination that never should have been made. Democratic presidents conniving with a Democratic Senate put quite a mess of people on the Court whose judicial experience was minimal or nil: Louis Brandeis, Black, Wm. O. Douglas, Robert Jackson, Arthur Goldberg, and Abe Fortas. Richard Nixon managed to persuade the Democratic Senate to accede to Wm. Rehnquist and Louis Powell, who were similarly bereft. What's odd is that Nixon had deferred to an ABA panel which had rejected an appellate Judge named Mildred Lillie from California with the bizarre complaint about her deficit of 'experience'. (John Dean having interviewed her said 'she's damn bright and knows her mind').

Art Deco said...

six of the sixteen Republicans remaining