Three reviews of Philip Hamburger's book which seems to be being used by
the theocrats to bolster their claims church state separation is myth. In
short, doing exactly what Prof. Marci Hamilton said she hoped wouldn't
happen in her review.
Philip Hamburger, Separation of Church and State, Cambridge: Harvard
University Press, 2002. Pp. xiii + 501. $49.95 (ISBN 0-674-00734-4).
http://www.historycooperative.org/journals/lhr/23.1/br_1.html
[excerpt]
Book Review
Philip Hamburger, Separation of Church and State, Cambridge: Harvard
University Press, 2002. Pp. xiii + 501. $49.95 (ISBN 0-674-00734-4).
This rich analysis of American thinking and practice concerning
church-state relations takes its start from two propositions. One is that
there is a radical contrast between eighteenth- and twentieth-century ideas
on this subject, the other that "the standard history" has generally failed
to record or even understand this contrast.
Hamburger argues that, despite Jeffersonian references to a wall of
separation, framers of the American Constitution and Bill of Rights had
nothing of that sort in mind. The most they intended was to forbid any
national Establishment that would privilege one church or form of belief
and subordinate or otherwise disadvantage others. Only in the course of the
nineteenth century was anything properly called "separation" widely
discussed or even partially implemented. The newer conception, however,
when it did take hold, not only banned forms of support for religion that
might connote establishment. It "also pointed to something more dramatic—a
distance, segregation, or absence of contact between church and state" (3).
Not only scholars, Hamburger believes, but also liberal jurists and
legislators, have managed to downplay or deny the disparity between these
two positions. The true intentions of the founders have therefore been
obscured behind a cloud of historical mythmaking. What is worse, the myth
in question has been mobilized by thoroughgoing separationists, many of
whom will stop at nothing to keep religion out of the public square and out
of all discourse on public policy.
Hamburger does not suggest that everyone from 1800 on who has
championed or chronicled "separation" has embraced the Jeffersonian
metaphor. Although Justice Black employed it in the Everson decision of
1947, some of his colleagues and successors found they could not go along.
In Zorach (1952), for example, Justice Douglas remarked that if the First
Amendment had really constructed a wall, churches could not be required to
pay property taxes, nor could municipalities provide churches with fire and
police protection. But Hamburger complains that even those who have seen
the line between these entities as "blurred, indistinct and variable"
(Chief Justice Burger, in Lynch v. Donnelly [1984]) have had difficulty
escaping the illusion that "the separation of church and state" is a
Constitutional mandate. Certainly they have made no effort "to shake off
the phrase" (8–9). It is vitally important, he thinks, that we all come to
understand that "separation" was not in the lexicon of most of the founders
nor in the minds of the eighteenth-century religious sectarians who engaged
in anti-establishment agitation.
[end excerpt]
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A book, Philip Hamburger. Separation of Church and State. Cambridge,
Mass.: Harvard University Press, 2002. 492 pages. Notes, index. $45.00
(cloth), has been offered by some in the newsgroups as proof church
state separation is a myth.
What follows are two different points of view about this book
(I have the book but haven't read it yet. I got it at Christmas. along
with about 20 other books)
The first view is offered by Prof Marci Hamilton
MARCI A. HAMILTON
[hamilto...@aol.com]
Biography
(from
http://writ.news.findlaw.com/hamilton/:)
Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public
Law at the Benjamin N. Cardozo School of Law, Yeshiva University,
where she is the founding Director of the Intellectual Property Law
Program. She has been a visiting scholar at Princeton Theological
Seminary, the Center of Theological Inquiry, and Emory University
School of Law.
Professor Hamilton is an internationally recognized expert on
constitutional and copyright law. She is frequently asked to advise
Congress and state legislatures on the constitutionality of pending
legislation and to consult in cases before the United States Supreme
Court. She represented the City of Boerne, Texas in a successful
challenge to the Religious Freedom Restoration Act, a case that
resulted in the Court's landmark decision in Boerne v. Flores, 507
U.S. 521 (1997).
Professor Hamilton clerked for Associate Justice Sandra Day O'Connor
of the United States Supreme Court and Chief Judge Edward R. Becker of
the United States Court of Appeals for the Third Circuit. She received
her J.D., magna cum laude, from the University of Pennsylvania Law
School where she served as editor-in-chief of the University of
Pennsylvania Law Review. She is a member of Phi Beta Kappa and Order
of the Coif.
ARTICLE #1
* Was Church/state Separation Part of the Original Constitution?: A
Review of Philip Hamburger's Provocative Recent Book on Separation's
History
Friday, Sep. 20, 2002
http://writ.news.findlaw.com/books/reviews/20020920_hamilton.html
An important point made in her article:
The Book's Value, and How It Might - and Should Not - Be Misused
[snip]
Hamburger's book also (but inadvertently) opens another, more
dangerous door. This is a scholarly book, and Professor Hamburger has
no apparent political agenda. But my fear is that those who are
hostile to the Establishment Clause will embrace the book for all the
wrong reasons - despite the fact that, on a fair reading, the book
simply does not support their view.
There are potent forces, currently dominant
[not so dominant. This is one area I strongly disagree with her on
buckeyeelo]
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.
[snip]
This is an important book, but not an ideological one. If it is
appropriated for ideological purposes, that will be a great shame.
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
ARTICLE #2
Philip Hamburger. Separation of Church and State. Cambridge, Mass.:
Harvard University Press, 2002. 492 pages. Notes, index. $45.00
(cloth), ISBN 0-674-00734-4.
Reviewed by: Mark D. McGarvie , Adjunct Professor of History,
University of Richmond, and Golieb Fellow in Legal History, New York
University School of Law, 2001-2002.
Published by: H-Law (March, 2003)
Was the Constitution Rewritten by Anti-Catholics? A New Approach to
the Church-State Controversy
http://www.h-net.msu.edu/reviews/showrev.cgi?path=180081052130058
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
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