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WAS CHURCH/STATE SEPARATION PART OF THE ORIGINAL CONSTITUTION?
A Review of Philip Hamburger's Provocative Recent Book on Separation's History

By MARCI A. HAMILTON
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Friday, Sep. 20, 2002

Philip Hamburger, The Separation of Church and State (Harvard Univ. Press 2002)

In recent years, a majority of the Supreme Court's Justices increasingly has found government financial support for religion to be permissible. It has done so even though the trend towards more and more such support appears to bode ill for any meaningful separation between church and state. Prominent examples can be found in decision addressing state-funded tuition vouchers, computers, and on-premises special education training.

Accordingly, the timing is perfect for Professor Philip Hamburger's brilliant historical account of the use of the concept of, and the term, "separation" in the church/state context. There could hardly be a better time to look back on our history of the interrelationship between church and state, and get some perspective on current debates.

The Separation of Church and State is not only a helpful, but also an absolutely necessary book for everyone who studies and who cares about church/state relations. This is one of those exciting scholarly forays that opens new horizons.

Hamburger's Wide Scope, and His Provocative Thesis

Hamburger chronicles the use of the term "separation" over American history - from even before the framing of the Constitution, up until the Twentieth Century. His account concludes in 1947, when the Supreme Court issued its first Establishment Clause, Everson v. Board of Education. (Everson permitted states to financially support the busing of children to private religious schools as well as public schools.)

Moreover, there was a distinction between "separation" and "disestablishment" - a distinction all the more significant because the Constitution's Religion Clauses do not mandate the separate of church and state, they forbid the "establishment" of religion and guarantee its "free exercise."

The Concept of "Separation" As The Product of Later History, Not the Founding

Hamburger contends, then, that "separation" is a constitutional norm that has evolved out of a series of culture clashes over the years. The simple belief that "separation" has a pure constitutional pedigree is inaccurate.

Instead, Hamburger argues, the concepts embodied by the Establishment and Free Exercise Clauses eventually transformed, over time, into the concept of "separation." The "separation" of church and state, far from being an idea fixed at the founding, has had an evolving set of meanings.

Moreover, these meanings did not derive from constitutional exegesis alone, according to Hamburger. Rather, they have grown out of pointed culture clashes between dominant and minority religions.

Most provocatively, Hamburger highlights the political use of "separation" as a tool of anti-Catholic animus. Others have traced the anti-Catholicism that has dogged United States history, but Professor Hamburger has placed that animus in the context of the development of an evolving constitutional norm.

On Hamburger's reading, "separation" was a tool the Protestant majority came to embrace in order to keep the Catholics - who they believed were charged with serving Rome rather than the rule of law - from taking over government.

The Book's Value, and How It Might - and Should Not - Be Misused

Hamburger has opened the door for other, exciting scholarship, and one can only hope that he and others will continue where his story leaves off, in 1947. Scholars may also want to expand the analysis within the historical period Hamburger does cover, as well: For example, what about the uses of "separation" in the context of other legal discourses, such as family law? Do those uses reflect on its meaning in the church/state context as well?

There are potent forces, currently dominant in this society, that would virtually unite church and state - by increasing government financial support for religious institution, and increasing religions' control of legislative agendas through lobbying and political contributions. They may see this book as a handy tool.

Separation, they will argue, was not part of the original Constitution, so there is no reason to honor it today; as long as there is no formal state Church and no blatant religious persecution, they may suggest, the U.S. is in full compliance with the Establishment and Free Exercise Clauses. After all, they may point out, there is no Separation Clause. Separation is only Thomas Jefferson's metaphor, not the Constitution's.

The list of issues for those with the anti-separation agenda seems to grow every day. Think of the numerous examples: state-funded vouchers for private schools, "charitable choice," the Religious Freedom Restoration Acts at both the federal and state level, the Religious Land Use and Institutionalized Persons Act, Medicare funding provisions that cover faith-healing, states' exemptions from parental child neglect laws when medical care is withheld for religious reasons, the too-short statutes of limitation governing child abuse by clergy, and the endless list of government-financed school supplies provided to religious schools. The list, sadly, could go on.

Hamburger's description of the evolution of "separation" is not always pretty. The book's historical details, thus, could easily be used to try to tar the very concept of "separation" itself and encourage even more church/state intermingling than is already occurring. That would be a misuse of the book and a misreading, but it still may well occur.

What Hamburger's book shows, as a more general matter, is that constitutional norms evolve through social interaction. Thus, principles implicit within a constitutional provision may not be entirely apparent at the time of the framing. Rather, these principles have to emerge through the course of history. The fact that they become express only later does not mean, however, that they are not truly part of the Constitution.

As Hamburger chronicles, "separation" of church and state emerged through a series of struggles, as a way for the culture to accommodate the competing and sometimes conflicting powers of church and state, and, surprisingly enough, between different religions. Is separation a good or a bad thing? Strikingly, Professor Hamburger leaves the question entirely open - inviting others to answer it.

This is an important book, but not an ideological one. If it is appropriated for ideological purposes, that will be a great shame.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is Hamilton02@aol.com. She has written frequently for this site on church/state separation issues; these columns can be found in the archive of her work. A more detailed review of Hamburger's book, by Hamilton, will appear in a forthcoming volume of the Virginia Law Review.

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