YDS: The Clare Spark Blog

November 5, 2010

Hamburger’s Separation of Church and State

Philip Hamburger, Professor of Law, Columbia U. Law School

Before reading this blog, I ask the reader to examine two separate accounts of Philip Hamburger’s book.

http://query.nytimes.com/gst/fullpage.html?res=9B02E6D61131F935A35754C0A9649C8B63 (Peter Steinfels reviews Hamburger, 2002 in NYT.)

http://www.law.columbia.edu/media_inquiries/news_events/2007/December07/hamb_profile.  (Columbia Law School describes the controversy over Hamburger’s book., December 2007 issue of Columbia Law School Magazine.)

[My blog:]    In the conclusion to his 492 page study, Separation of Church and State, the author instructively contrasts two clashing visions of “liberty” (though not in terms that a libertarian would recognize). These paragraphs would seem to identify him as a neutral party to the culture wars (traditionalism versus secularism) that have inflamed the republic longer than we might think. I quote his paragraphs, then lay out the strange associations and claims that this Harvard-published book maintains.

[Hamburger, p. 485:]…[Summarizing Tocqueville] By inculcating morals, by encouraging mutual love and forgiveness, and by directing ambitions toward another world, religion could diminish injurious behavior, dissension, and distrust. Accordingly, it could reduce the necessity of civil coercion—a necessity that might otherwise lead a people to desire harsh or even tyrannical government. Religion could also establish a lasting foundation in public opinion for the various rights that seemed particularly vulnerable to fluctuations in popular sentiments. It thereby could temper the selfish passions and oppression to which republics were all too prone. Thus religion—specifically the Christianity inherited and shared by a community—seemed essential for the preservation of liberty.

[Hamburger, cont., p.485:]    Increasingly , however, this perspective coexisted with another, very different point of view, drawn from European experiences and fears—a perspective that survives most prominently in the writings of Thomas Jefferson. Together with expanding numbers of other Americans, Jefferson feared that clergymen, creeds, and therefore most churches undermined the inclination and ability of individuals to think for themselves. He worried that individuals would defer to their church’s clergy and creed in a way that would render them subservient to a hierarchy and would deprive them of intellectual independence. In such ways, the clerical and creedal religion of most churches appeared to threaten the individual equality and mental freedom that Jefferson increasingly understood to be essential for the citizens of a republic.

[Clare:] One might think from these excerpts from the chapter entitled “Conclusions” that the author had actually set up throughout his lengthy text discussions of Toqueville and Jefferson. But he had not. Rather, he created a genealogy for “American identity” that conflated his secularists with Roger Williams (unconscionably insulted and dismissed in the brief pages on his pathbreaking religion and politics); with Republican Jefferson’s political ambitions in the campaign of 1800 (in which he determined to defeat statist Federalists); with viciously anti-Catholic, anti-working class Protestants who forced compulsory free public education down our throats; with Know-Nothings, “Liberals,”“nativists,” “freethinkers”, “white supremacists,” “individualists,” and  “Americanists”; with Reform Jews, including Felix Frankfurter (!); with Unitarians; and most breakthtakingly, with the Ku Klux Klan, spending endless pages on the tricky Klansman SCOTUS Hugo Black and his fiery crosses (crosses that the author linked to the Statue of Liberty).

I try not to be paranoid, but this wild and undisciplined book could be a through-the-looking-glass rewrite of Disraeli’s novel Lothair (1870), in which the author describes an elaborate [ultramontane] Catholic plot to lure the fabulously wealthy hero (Lothair) away from Anglicanism, a conspiracy to restore the Pope as the supreme authority in Britain (along with his confiscated lands) that fails in the end. In Hamburger’s drama, however, the (undifferentiated) Catholics are the victims of (undifferentiated) Protestants and their white-sheeted knights.

Nowhere does the author examine whether or not the “secularists” had any reason to fear authoritarian religion as an obstacle to intellectual independence. Nowhere does he examine the propaganda churned out by elites since antiquity that declared the people incapable of the self-control and community spirit of their betters. Nowhere does he lay out the case law that addressed the (non-existent or illegitimate) separation of church and state. But what is most shocking is that in both of the reviews and summaries of the controversy linked above, what I have written about the iconographic program of this book is utterly absent, like Roger Williams himself, who was the true originator of the notion that church and state should and must be separated, that faith was an entirely private matter of individual conscience. (Herman Melville said the same in a marginal comment in Goethe’s autobiography, and also echoed Williams’s respect for native Americans and his questioning of what was to become the conquest theory of property.)

Another lacuna in the text is the vexed question of the taxation of Church property. As Keith Thomas wrote long ago in his Religion and the Decline of Magic (1971), one reason for the witch-hunts in seventeenth century England might have been this confusion: Who was responsible for charity and the protection of the poor and disabled? Was it to be the state or the church? And to bring Thomas’s  question up to date, if churches, public schools, universities, and non-commercial media are to be ideological weapons of one narrow politics—the crazy-making statist politics of “moderation” (a.k.a. round-the-clock “compromise”)– should taxpayers be asked to support them? Or should they compete in the marketplace of ideas? Hamburger never uses that expression, and I doubt that any Harvard UP editor suggested it to him. The major university presses are firmly committed to self-sacrifice, duty and service to the “community” above creativity and innovation. The “self” has been erased and “laissez-faire capitalism” reduced to a dirty conception.

(For a related blog, see https://clarespark.com/2009/07/04/unfinished-revolutions-and-contested-notions-of-identity/. ) Also https://clarespark.com/2009/11/22/on-literariness-and-the-ethical-state/. It will be clear that Hamburger is an advocate of the “living Constitution” that enhances the “positive state”–i.e., the ethical state. Cf. Mussolini’s Fascism.

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3 Comments »

  1. […] Click onto the illustration and read what German agent George Sylvester Viereck wrote about Hitler in 1923: you will find the line “he storms their reserve with his passion.” Yesterday I posted my objection to Glenn Beck’s obsession with blaming everything wrong with our society on “the progressive movement.”  I also objected to his tendency to equate right-wing social democrats with communists, an error only a person with little knowledge of 20th century European history would make. Given the millions who tune into every program and who think he is a powerful weapon in the campaign against “Big Government,” it is not surprising that one of my Facebook friends immediately objected to my criticism of a man he thinks is a hero, but who, though I often agree with him, sometime suspect to be a power-hungry demagogue, taking advantage of ever-growing dissatisfaction with U.S. domestic and foreign policies to feed his ego and to line his pocket, while playing the earnest clown. Whatever his motives, there is no excuse for indicting “progressivism” as a “cancer….” as he did in his keynote address at CPAC, or his comments today (May 26, 2010) trashing Bernays and Lippmann. Usually  this is an antisemitic jibe from the Left and Chomsky, but Beck was vehement and nasty.  I am disgusted. See my widely circulated essay https://clarespark.com/2009/08/19/noam-chomskys-misrepresentation-of-walter-lippmanns-chief-ideas-on-manufacturing-consent/ %5BAdded, March 19. I have been reading about Edmund Burke and his revival from the 1950s on. Paleoconservative Russell Kirk (a founder of National Review) and his ultraconservative Burkean allies in academe are probably the intellectual sources for Beck. Although on many points, he seems to be a libertarian, he is also opposed to any view that does not regard the Christian God as the source of order and liberty–along with Bill O'Reilly and Newt Gingrich, his opponents are "secularists." Hence his attempt to remake the Founding Fathers into believers in God as the chief lawgiver of "moral natural law"–the source of order, with the state as a usurper insofar as it threatens (upper- or middle-class) property, the ballast for "tradition." This places Beck as a follower of Edmund Burke, as I believe Jonah Goldberg to be, who is as rattled by "the Jacobins" as the source of totalitarian/statist control.)* [Added 6-6-10: I was much mollified and gratified by Beck's support for Israel during the last week. How this fits in with his general ideology, I cannot say. Added 7-18-10: Beck clarified what he means by rights being God-given: he was contrasting this position with the competing notion that rights are gifts from the State, a key Nazi idea.] [Added 10-30-10. I am taken aback by the Harvard UP published book by Philip Hamburger, Separation of Church and State (2002). This book is more helpful in explaining the religious Right and their alarm at secularism than any other history book I have ever read. If intent matters, Hamburger bolsters the case that the writers of the Constitution did not banish religion from the public square, far from it. See https://clarespark.com/2010/11/05/hamburgers-separation-of-church-and-state/.%5D […]

    Pingback by The Glenn Beck Problem « YDS: The Clare Spark Blog — June 29, 2011 @ 6:15 pm | Reply

  2. It should be made clear at the outset that The US Constitutional mandate for sepeartion of Church and State intended only one “Church” in its definition: The Roman Catholic Church and the Papacy. It represented the climax of the Post-Reformation trend for enforced public secularization as The State asserted itself during the rise of nationalism pfrediated at First through mercantilism (Capitalism) and its inevitable successor, socialism or the mono-captialism of the State. The historical and traditional ideal of utopos (Heaven on Earth) was thus demolished and immerged as dystopianism, i.e., National Socialisms qua German, Russian, and Italian totalitarianm, et., etc.
    Benard X bovasso .

    Comment by Bernard X bovasso — November 7, 2010 @ 9:53 pm | Reply

    • That is certainly Hamburger’s view. However, he does not consider the Scientific Revolution or the British Enlightenment as positive developments. All else follows from that.

      Comment by clarespark — November 7, 2010 @ 11:06 pm | Reply


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