Separation Anxiety - "Separation of Church and State" - Book Review

National Review, Oct 14, 2002 by Hadley Arkes

Separation of Church and State, by Philip Hamburger (Harvard, 560 pp., $49.95)

Felix Frankfurter, nestled in the Supreme Court in the late 1940s, summed up the new orthodoxy taking hold in his circles: "We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion." The language was high-flown, for Frankfurter was untethered now from anything in the text of the Constitution. The notion of separating religion and politics sprang, rather, from Jefferson's letter to the Baptists in Danbury, Conn., in which Jefferson famously spoke of a "wall of separation between Church and State."

But as Philip Hamburger shows in his meticulous and comprehensive study, the political arguments over "separation" describe a history that rather belies all the claims made for the meaning of that "principle" in our constitutional law: There was no concept of "separation" attached to the clauses on religion in the Constitution, and beyond that, the founding generation understood "separation" on terms strikingly at odds with the understanding held by the liberal apostles of separation in our own day. The religious dissenters in the 18th century sought to secure religious freedom by restraining the power of the government, but -- as Hamburger sums it up -- "the First Amendment, which was written to limit government, has been interpreted directly to constrain religion."

The First Amendment, in its opening clause, declared that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Thanks to layers of judicial opinions, ordinary folk are often surprised now to learn that the first clause meant, in its spare language, that Congress would lay no hands on the subject: Congress would not interfere with the establishments of religion in the several states. The Congregational Church in Connecticut was supported by the laws and public funds, and that establishment would not be impaired by anything in the federal Constitution. Nor would there be any upheaval in the "liberal" regime in Maryland, which held that it was "the duty of every man to worship God" -- and that every man should therefore have the choice of determining for himself which Protestant church he would attend, and support with his taxes.

The "separation" sought by the Baptists, Quakers, and other dissenters would protect them from being legally compelled to support another sect, "established" now as the religion sustained and favored by the state. But this kind of "separation" hardly meant a willingness to detach the law, or the polity, from religion. The Quakers were pacifists, and they wished to have some recognition, in the law, that they were rightly exempted from any obligations of military service. As for the Baptists, they would be ever reluctant to separate religion from politics, as they would be reluctant to detach morality from any other part of human life. As one Baptist writer put it, "religion is a universal principle and has to do with all life."

The impetus to "separation" in its modern sense did not arise until the middle of the 19th century. As Hamburger makes unmistakably clear, that movement has been connected, from that time to our own, to a patent anti-Catholic animus. From the Know-Nothings to the Ku Klux Klan, the aversion to Catholics was bound up with the politics of nativism. This persuasion found its most respectable incarnation in the Republican politics of the era of Ulysses Grant and Sen. James Blaine: There would be no funding for those sectarian parochial schools, in contrast to those wholesomely secular schools that shaped Americans in a kind of muscular "civic Protestantism." This proposal would eventually be incorporated in the so-called Blaine Amendment, which narrowly failed at the national level, but spawned a host of progeny in the states. Those progeny still linger in the law, and they are still being used by coalitions on the left to resist the movement toward school vouchers.

And yet, these Republicans were not the most radical exponents of separation. They were far from joining the clamor to rule out oaths of office, proclamations of thanksgiving, or chaplains in the military; nor were they willing to join the insistence that the mails be delivered on Sundays. The more radical movement for separation came late in the 19th century with the National Liberal League, which aimed at nothing less than the obliteration of religion from public life. In their own alternative to the Blaine Amendment, the Liberals sought to ban, from all levels of government, any aid, direct or indirect, to religious institutions or teachings.

But to grasp the sweep of the separationist program was to grasp at once how unreceptive the mass of Americans were to any such program. In the sweep of their opposition to all things religious, the Liberals swept as well to the rejection of all things moral. The same people who found their enemy in the religious tradition would see the same enemy at work in the laws that regulated the "vices" and obscene publications. The truly emancipated would move first to the "freedom of sexual discussion," then to sexual freedom itself; and in that move they would expose the libertinism that truly lay at their core. Not for nothing did some of their former allies brand them "the party of license," and with that split they came apart as a political force.