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Separation of Church and State: a Theologically Liberal, Anti-Catholic, and American Principle Philip Hamburger

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Separation of Church and State: a Theologically Liberal, Anti-Catholic, and American Principle Philip Hamburger University of Chicago Law School Chicago Unbound Occasional Papers Law School Publications 2002 Separation of Church and State: A Theologically Liberal, Anti-Catholic, and American Principle Philip Hamburger Follow this and additional works at: http://chicagounbound.uchicago.edu/occasional_papers Part of the Law Commons Recommended Citation Philip Hamburger, "Separation of Church and State: A Theologically Liberal, Anti-Catholic, and American Principle," University of Chicago Law Occasional Paper, No. 43 (2002). This Working Paper is brought to you for free and open access by the Law School Publications at Chicago Unbound. It has been accepted for inclusion in Occasional Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. OCCASIONAL PAPERS FROM THE LAW SCHOOL THE UNIVERSITY OF CHICAGO NUMBER 43 2002 Occasional Papers from The University of Chicago Law School Number 43 November 2002 Separation of Church and State A Theologically Liberal, Anti-Catholic, and American Principle By Philip Hamburger John P. Wilson Professor of Law 'A Theologically Liberal, Anti-Catholic, andAmerican Principle"isan excerptfrom Separation of Church and State by Philip Hamburger,Harvard University Press, 2002. @ 2002 INTRODUCTION This Occasional Paper reproduces a chapter from Professor Philip Hamburger's new book, Separation of Church and State, published in the summer of 2002 by Harvard University Press. The book argues that during the past two centuries the adoption of the idea of separa- tion between church and state has transformed American conceptions of the religious liberty guaranteed by the First Amendment. Many Americans take the idea of separation between church and state for granted. In an 1802 letter to the Danbury Baptist Association, Thomas Jefferson declared that the First Amendment built a wall of separation between church and state. More recently, in 1947, the U.S. Supreme Court adopted the wall of separation as the foundation of its establishment clause jurisprudence. On the basis of these apparently authoritative pronounce- ments, Americans often assume that separation was the religious liberty enshrined in the First Amendment. Although judges have increasingly questioned separation, the Supreme Court has never directly repudiated the metaphor, and it remains a common focus of judicial opinions and other discussions of religious liberty. Against this background, Philip Hamburger explains that separation was not the religious liberty guaranteed by the First Amendment. The First Amendment created a barrier against a government establishment of religion, but it was not designed to separate church and state. Indeed, separation came to be adopted as a constitutional principle only later, during the course of the nineteenth and twentieth centuries. Chapter 8, reproduced here, explores how in the mid-nineteenth century, separation between church and state first became widely celebrated as an American con- stitutional principle. Strikingly, it grew to be popular not through concern about protecting religious minorities, but through majority prejudice. Other chapters explore a broad range of topics including the liberty sought by early religious dissenters, I the wording of the First Amendment's establishment clause, Thomas Jefferson's 1802 letter to the Baptists, the place of atheists in the evolution of religious liberty, the role of the Ku Klux Klan in advocating separation, and the views of Justice Hugo Black. These and other portions of Professor Hamburger's book reveal how the antiestab- lishment religious liberty of the First Amendment was gradually transformed into a separation of church and state. In particular, they reveal how theological suspicion and intolerance have reshaped religious liberty, leaving minority rights to be interpreted in terms of a metaphor popularized through its appeal to the prejudices of a majority. The University of Chicago Law School is grateful to Harvard University Press for permission to reprint Professor Hamburger's chapter 8, which is printed here without footnotes. 2 A THEOLOGICALLY LIBERAL, ANI-CATHOLIC, AND AMERICAN PRINCIPLE In the middle of the nineteenth century some Americans employed the idea of separation of church and state against Catholicism and thereby made it a popular "American" principle. During the beginning of the centu- ry, as has been seen, some secular political writers had occasionally advocated separation as a constitutional prin- ciple in a spirit that was recognizably Republican-that was anticlerical but not specifically anti-Catholic. By the middle of the century, however, Protestants began to employ separation in a manner more likely to have wide- spread appeal. Eager to prevent the Catholic Church from exercising political or religious authority in America, many Protestants were all too willing to perceive their religious liberty as a separation of church and state, and increasing numbers of Protestant leaders therefore opposed the Catholic "union" of church and state by urging a separa- tion of these institutions. Of course, American Protestants had long differentiated between church and state and had justified their religious liberty with related distinctions concerning the limited jurisdiction of civil government. Therefore, many of the Protestants who began to assert a separation of church and state probably assumed that they were not making any significant change. Nonetheless, in demanding the separation of church and state and claim- ing that it was a constitutional principle, they took a momentous step, for they thereby initiated a redefinition of American religious liberty. When advocating separation against Catholics, Protestant Americans voiced not only a fear of the Church's temporal power but also, more fundamentally, an individualistic suspicion of its theological authority. Even more than the church's secular power, its assertions of theological authority seemed incompatible with free- dom-especially with the individual independence and personal authority that were increasingly felt to be at the core of Protestant and American identity-and, in this respect, anti-Catholic demands for separation echoed and 3 drew upon liberal Protestant rejections of creeds. Reacting to the hierarchical, group claims of Catholicism, Protestants ever more emphatically defined themselves, their citizenship, their religion, and their liberty in terms of their individualism and independence, and, in separa- tion's limits on churches as well as government, these Americans found the most positive articulation of what their increasingly individualistic religious and civil identity implied for the Catholic Church and eventually other reli- gious groups. LIBERAL PROTESTANTISM AND ITS CHALLENGE To AUTHORITY In America anti-Catholicism adopted some of the assumptions of liberal theology. American anti- Catholicism developed in response to many circumstances and came in many varieties, but much of what distin- guished it from European anti-Catholicism was the degree to which it flourished with the growth of liberal Protestant ideas and became an avenue for liberal rejections of ecclesi- astical authority. Rather than follow the path of European liberals in going to extremes of anti-Christian skepticism, American liberals explored the further reaches of individu- alistic Protestantism and questioned the authority of churches, clergymen, and creeds. They thereby developed an antiecclesiastical perspective, from which growing num- bers of Protestants, whether or not theologically liberal, perceived the Catholic Church as a threat to individual mental freedom. In particular, Protestants could put aside their own differences over liberal theology and could unite by adopting a theologically liberal stance against Catholicism. As Rabbi Isaac Wise remarked about the anti-Catholic prejudice of his Protestant contemporaries: "The liberality of the Protestant churches is something unknown and strange." American Protestants had departed from established churches, including those of Rome and Canterbury, but now increasing numbers of American Protestants ques- tioned the authority of entirely disestablished Protestant churches. Most evangelicals belonged to churches that 4 retained creeds, clergies, and structures of church disci- pline. Nonetheless, ever more Protestants felt their indi- vidual liberty to require a freedom not only from govern- ment but also from their own purely voluntary religious societies. In effect, these Protestants declined to distinguish between what one minister, Samuel Lothrop, called "internal" and "external" religious liberty. The external was the liberty "which the individual claims of the govern- ment as a civil right, and relates to the extent of his exemption from penalties, privations or disabilities, on account either of his articles of faith, or modes of wor- ship." In contrast, the internal was "the liberty which the individual claims of the church or ecclesiastical body, and relates to his freedom to form and express his own opin- ions of religious truth, without loss of religious privileges and fellowship, on account of those opinions." The New England establishments had most clearly threatened the external liberty, but, with the decline of these establish- ments in the early nineteenth century, Unitarians in par- ticular demanded internal as well as external liberty and, indeed, hardly differentiated them. In the words of William Ellery Channing-the most prominent advocate of internal liberty:
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