Philip Hamburger, Separation of Church and State, First Harvard University Press paperback (Cambridge, MA: Harvard University Press, 2004).

Introduction

Philip Hamburger is a graduate of Princeton University (1979) and Yale Law School (1982). He is the Maurice & Hilda Friedman Professor of Law at Columbia Law School, and he is the Chief Executive Officer of the New Civil Liberties Alliance. He has written several books over the last two decades, but this one (Separation of Church and State, originally published in 2002) is something of a bombshell on the field of conventional wisdom regarding the concept of separation between church and state. Hamburger not only diverges from the typical interpretation of church-state separation, but he also provides a great deal of evidence that the concept itself has transformed quite significantly over time and that the present application of it is nearly the opposite of its original intention. 

On one of the opening pages, Hamburger cites three statements that form the pathway of perspectival development on this thoroughly American idea. The first is from the First Amendment of the U.S. Constitution – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The second is from a letter written by Thomas Jefferson to the Danbury Baptist Association – “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” And the third is from the Supreme Court judgment, written by Justice Hugo Black, in the case of Everson v. Board of Education – “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’” Thus, Justice Hugo Black established a judicial (as well as social and political) precedent by interpreting the First Amendment through the prism of Thomas Jefferson’s pen, which Hamburger argues was a tool for atypical political and religious ideas in the early nineteenth century (and far more so in the eighteenth century) and intentionally innovative.

Book Summary

Hamburger provides a thesis statement in his introduction. He writes, “this book attempts to understand how Americans came to interpret the First Amendment in terms of separation of church and state, and through this inquiry it traces how Americans eventually transformed their religious liberty.”^[1] In summary, Hamburger argues that it is “misleading to understand either eighteenth-century religious liberty or the First Amendment in terms of separation of church and state.”^[2] Rather the sort of liberty sought by many of America’s founders and the various religious dissenters who argued for it was defined by a limitation upon governmental institutions and not religious ones. Specifically, Americans (including both religious and non-religious) wanted the freedom to believe and behave according to various religious traditions without civil penalty. The dominant religious worldview of eighteenth-century America was Protestant Christianity, and religious liberty was comprehended from this perspective. Thus, dissenters and non-religious Americans generally maintained that atheists, Roman Catholics, and Muslims were prohibited from participating in civil institutions. However, it was the civil institutions themselves that ought to be prohibited from exercising authority in Protestant ecclesiastical affairs.

Hamburger organized this book in four main parts, each focusing on theoretical and practical developments in the concept of religious liberty, which correspond to a basic chronological structure. Part I provides the eighteenth-century context for the religious liberty debate. Hamburger demonstrates that it was not the dissenters who argued for separation, but their establishment opponents who slandered them by making the accusation that separation was the real goal. In fact, dissenters not only denied the accusation, but many of them expressed a willingness to maintain a genuine connection between church and state. 

In Part II, Hamburger explains how the Democratic Republicans (the opposing party to the Federalists) in the early nineteenth century shifted the entire religious liberty debate. Thomas Jefferson’s presidential bid was hotly contested by the Federalists, and many establishment preachers made public their opposition to Jefferson’s candidacy. Jefferson was not himself a religious man, and so his lack of ecclesiastical adherence was a major target of the Federalists. In an effort to reduce the heat of these attacks, Republicans argued for the removal of religion from politics. Thus, politics became a form of religion, and America’s perspective of religious liberty was pushed in the direction of separation. It is also important to note here that Hamburger provided evidence that Baptist dissenters did not embrace the Jeffersonian concept of separation any more than the establishmentarian Federalists did at that time.

Hamburger argues, in Part III, that it was really during the mid-nineteenth century that Americans more commonly began to embrace an increasingly radical view of separation. It was then that theological liberals and everyday Americans were animated by a shared public enemy – Roman Catholicism. It was Roman Catholics who then represented the sort of establishmentarianism from which Americans had broken free during the previous century. And Rome was inherently establishmentarian (so the argument went), unlike the various Protestant traditions which generally defined American culture and religion at that time. This anti-Catholic sentiment was coupled with another societal development that made a total separation between religion and politics seem not only possible but necessary. Americans became a society of all sorts of specializations and public-private distinctions. Educators, politicians, lawyers, judges, legislators, merchants, and even consumers all found a great deal of convenience in separating their religious beliefs from their professional work or their participation in the American economy. Some claimed private religious belief, and some felt an obligation to the general societal ethic which was influenced by the traditional religious beliefs of others, but Americans were largely desirous of professional and leisure activities that could be separated from any religious constraints. Thus, anti-Catholic sentiment and American pragmatism made separation seem like an American fundamental.

In Part IV, Hamburger moves to the crux of his argument – the legal establishment of a developed constitutional interpretation of the First Amendment. In the twentieth century what became an American fundamental or principle over the course of about one hundred years was given judicial authority by no less than the Supreme Court of the United States of America. And the interpretive grid that was employed in order to offer historic grounding for such an interpretation was the innovative and thoroughly secularist words of Thomas Jefferson, even though his concept of separation at the beginning of the nineteenth century was neither widely embraced by the public nor a desire of the strongest advocates for religious dissent. 

Hamburger concludes, “In the transfiguring light of their fears, Americans saw religious liberty anew, no longer merely as a limitation on government, but also as a means of separating themselves and their government from threatening claims of ecclesiastical authority. Americans thereby gradually forgot the character of their older, antiestablishment religious liberty and eventually came to understand their religious freedom as a separation of church and state.”^[3]

Conclusion

Having read many of the primary sources from eighteenth- and nineteenth-century Baptists (including nearly all of the published writings of Isaac Backus and John Leland), I can say that Hamburger’s argument from the first half of this book rings true. Hamburger is exactly right about Leland’s idiosyncrasies as a Baptist and his infatuation with Jeffersonian politics. And Hamburger is also accurate in his description of the anti-establishment arguments from most Baptists in colonial and early America. They were not interested in extended religious liberty to “papists” (i.e., Roman Catholics), “Turks” (i.e., Muslims), or atheists. And most of them not only tolerated a religious oath for civil office, but they also advocated for such a thing. Even religious dissenters believed that an ordered and prosperous civil society necessitated a prerequisite embrace of Christian (namely Protestant) doctrine and ethics.

Hamburger’s historical receipts are matched by his judicial acumen as he interacts with the more recent developments in “America’s principle” as interpreted from the First Amendment. He rightly and effectively shows how religious liberty has become far more a restraint on religion than a restraint on government. And he also makes a compelling case for the claim that politics and government have become a religion of their own. But in the absence of genuine religious influence – which establishes and reinforces moral standards and civil order – citizens will inevitably turn to government when chaos threatens, and they will demand civil coercion and penalties. What a different view of American society this would become from what was envisioned and established by our founders.

This book was accessible in its content, logical and forceful in its argument, and compelling with regard to the evidence provided. I believe Hamburger has successfully demonstrated that the concept of religious liberty deserves more than the misleading, intellectually unfair, and historically inaccurate phrase “separation of church and state.” If you are interested in participating in a thoughtful discussion about the American principle of religious liberty, then I highly recommend that you read this book in order to know what that principle actually is and from whence it has come.

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^[1] Philip Hamburger, Separation of Church and State, First Harvard University Press paperback (Cambridge, MA: Harvard University Press, 2004). 3.

^[2] Hamburger, 9.

^[3] Hamburger, 492.