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Getting over the Wall.
by Robert H. Bork THIS year is the two hundredth anniversary of Thomas Jefferson's letter to the Danbury Baptist Association that asserted that the Constitution erected a "wall of separation between church and state." So profoundly has that metaphor affected American attitudes toward religious liberty and religion's dangers that most of us, including a majority of the Supreme Court, have forgotten that the "wall" is a constitutional myth without support in the words or actions of the Framers. Dissenting justices have pointed out that the First Congress, which proposed the First Amendment for ratification, also employed chaplains for the House, Senate, and armed forces, required that churches be built in the Northwest Territory, and called upon presidents to proclaim days of Thanksgiving to Cod (only Jefferson refused). Justice David Souter, an enthusiastic separationist, argues that "those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next." That is no small accusation to level against the Framers, and it ought to be supported by very strong historical evidence. However, the evidence runs overwhelmingly the other way. In Separation of Church and State, + Philip Hamburger, a legal historian at the University of Chicago Law School, demonstrates conclusively that separation of church and state was no part of the intention underlying the First Amendment's Establishment Clause, "Congress shall make no law respecting an establishment of religion." What the religious dissenters who heavily influenced the adoption of the Amendment wanted, and what the plain text of the Amendment gave them, was simply the prohibition of an established national church. Separation was radically different from what early Americans considered the true meaning of religious liberty. James Madison's role is instructive. In his 1785 "Memorial and Remonstrance," he argued that religion and government should have nothing to do with each other. But that was not the position he took in his drafting of the First Amendment. As Hamburger explains, "Madison reconciled himself to language less sweeping than that he had used in 1785, and Congress adopted a moderated version of the no-cognizance standard, which did not forbid all legislation respecting religion." The evidence for strict separation comes down to little more than Jefferson's 1802 letter to the Danbury Baptist Association, containing his famous wall-of-separation rhetoric. The Baptist Association, consisting of some 26 churches in the Connecticut Valley, sought Jefferson's views on religious liberty, hoping to use his response in their efforts to end their state's establishment. But the Baptists did not publish or use the letter in any way, since separation was incompatible with their understanding of Christianity's importance. IT was in fact not until 1840, when Protestants and Catholics in New York City clashed over the use of public school funds, that the idea of separation of church and state first attracted broad support and national attention. A second wave of separationist agitation began in the late nineteenth century, supported by Protestants, nativists, secularists, and anti-Christian secularists (known as "Liberals"). Opposed to all clerical hierarchies, all churches, and all religions-especially Christianity-the Liberals, as Hamburger points out, "insisted upon a purely secular version of separation that would segregate government not only from any one church but also, more broadly, from all distinct religions." Convinced that the Establishment Clause did not by itself completely separate church and state, these groups sought to amend the Constitution. They wanted to isolate or even prohibit Catholic parochial schools while the public schools continued to inculcate a generic Protestantism. Only later, when their amendment efforts failed, did the separationists conveniently "discover" that the Establishment Clause already embodied the separation principle, and they turned to the courts to obtain what the democratic process had denied them. The story is one of intense and recurrent anti-Catholicism. When, in the 1928 presidential election, the Catholic Al Smith was soundly beaten, largely because of his religion, the joke went round that he sent a one-word telegram to the Pope: "Unpack." The modern separationist myth, as Hamburger shows, leaps from Jefferson's 1802 letter to Justice Hugo Black's 1947 Everson opinion, which adopted the "wall" as a constitutional doctrine and omits "any discussion of nativist sentiment in America and, above all, omits any mention of the Ku Klux Klan," which helped lead the fight for separation. The myth also omits many details about Hugo Black, who was not only anti-Catholic but also a Klan leader, not the naive, young lawyer he later made himself out to be. It is impossible to read the separationist opinions of the Court from that time forward without recognizing what Chief Justice Rehnquist called a "bitter hostility" toward any government recognition of religion. As American society became increasingly secular and groups indifferent or actively hostile to religion grew in numbers, the antipathy toward Catholicism became a more general antipathy to all religion. Eventually, many Protestants realized, as Hamburger notes, that "they faced a greater threat from secularism and separation than from Catholicism." And indeed, Protestant and Jewish institutions and practices have since come under the increasingly antagonistic scrutiny of the courts. SEPARATION is popularly taken to imply that clergy and religious organizations may not properly attempt to influence voters or governments. This view, most commonly directed by liberals against the Catholic church, contains considerable hypocrisy. Liberals enthusiastically welcomed the role of black churches during the civil-rights movement-a role that included political speeches from the pulpits-and castigated the Catholic church for its public opposition to abortion. Religious argument is thus reduced to politics, and judged according to one's partisan stance. Though the Establishment Clause was intended to prevent government discrimination among religions, it is clear, Hamburger notes, that the separation doctrine of the Supreme Court cannot help but discriminate among religions. Those whose religion demands communal expression are disfavored, while those who prefer private individual religiosity are favored. Although the privatization of religion by the courts further diminishes the role of religion in public life, the secular society desired by many on the left certainly does not lack in religious fervor. Hamburger notes, as others have, that the groups that most vigorously condemn church participation in politics simultaneously bring a religious passion to their egalitarian politics. This began with Jefferson's Republicans, and it persists today. "It surely is no coincidence," writes Hamburger, that many of the very groups that have sought to exclude churches from politics have pursued their political goals by appealing to religious passions and aspirations.... Perhaps the powerful emotions and desires associated with religion are unavoidable and, if not channeled through conventional religious institutions, are likely to find other outlets.... Yet it remains unclear whether powerful yearnings for purity and transcendence are less dangerous when focused on this world than on another. HAMBURGER'S tone throughout this book is unfailingly moderate; he never overstates his evidence. Yet I wish he had taken a few pages to dissect the thoughtlessness of judges who assure us, with no better support then Jefferson's idiosyncratic views, that strict separation has always been the understanding of the First Amendment, as well as to illustrate the current madness, in which it is held to be a forbidden establishment of religion if a student is offended by hearing others say "under God" as part of the pledge of allegiance. The examples are endless--and mindless. Hamburger does, however, rightly stress the fraudulent and unpleasant origins of the doctrine: "Precisely because of its history--both its lack of constitutional authority and its development in response to prejudice--the idea of separation should, at best, be viewed with suspicion." As constitutional doctrine, the myth should be viewed with contempt. Separation of Church and State, to the extent that law and public discourse retain any degree of intellectual integrity, should begin the process of changing our thinking and that of our magistrates. Whether or not this occurs, Hamburger has made a major contribution to historical scholarship. + Harvard University Press. 560 pp. $49.95. ROBERT H. BORK is a senior fellow at the American Enterprise Institute and a professor at the Ave Maria School of Law.
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