ow did the religious liberty clauses of the First Amendment, barring Congress from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof," become equated with language that appears nowhere in the Constitution: "separation of church and state"?
To a lot of Americans, that is a nonquestion. They have so thoroughly amalgamated the idea of separation of church and state with the idea of constitutional freedom from a religious establishment that they can scarcely discern the difference. But for Philip Hamburger, John P. Wilson professor of law at the University of Chicago, the history of this amalgamation is a question of the first order, and one for which he has proposed some rather unsettling answers.
On June 30, Harvard University Press published an extensive study by Professor Hamburger, straightforwardly titled "Separation of Church and State." That was four days after the United States Court of Appeals for the Ninth Circuit found that the words "under God" in the Pledge of Allegiance violated the First Amendment, and three days after the Supreme Court found that government vouchers for tuition in religious schools did not. It has been impossible to read a newspaper since then without encountering references to separation of church and state.
But separation of church and state, contrary to what Professor Hamburger calls a "modern myth," was never the ideal invoked by either the framers of the Constitution or dissenting religious minorities like Baptists and Quakers who had been trying to escape from the constraints of established churches in Massachusetts, Connecticut, Virginia and other states.
It is well known that Thomas Jefferson, in an 1802 letter to the Danbury Baptist Association in Connecticut, characterized the First Amendment as "building a wall of separation between church and state." It is less well known that the Danbury Baptists, who had written Jefferson in hopes of getting ammunition to use in their battle against laws favoring the state's Congregationalist majority, quietly shelved the presidential missive. The metaphor of separation, let alone a wall of separation, suggested a distance, a lack of contact, an incompatibility, even an antagonism, between religion and government that sat all too awkwardly with these believers.
In fact, the formula of separation of church and state had first gained currency two years earlier, during Jefferson's presidential campaign. His supporters used it to browbeat Federalist clergymen, whether of established churches or not, who were denouncing Jefferson as irreligious.
Keeping politics, especially vehement politics, out of the pulpit may have been a sound idea, but, in this sense, separation was clearly a novel expansion of the First Amendment.
If, as Professor Hamburger argues, separation of church and state was not the 18th-century ideal behind the First Amendment's conception of religious freedom, how did it become virtually synonymous with religious freedom in the 19th century?
By mid-19th century, many Americans were in full-blown rebellion not against religion as such but against church structures and authorities. True religion was individual and antidogmatic, independent not just of state pressures but of church pressures, too. This attitude, as it so happened, converged with nativist anti-Catholicism. The Catholic Church, after all, was the very model of structure, authority and dogma.
In 1840, when Catholics began claiming equal rights to public school funds in New York City, Professor Hamburger writes, "this presumptuous demand shocked Protestants, many of whom responded by asserting separation of church and state as a constitutional principle."
For many Protestants, such separation did not prohibit Bible reading in public schools, Sabbath laws and other government links to religion. These were seen as nondenominational practices simply of individuals rather than a church, and therefore not threatening.
Eventually, nonreligious and openly anti-Christian secularists protested this kind of inconsistency. Genuine separation, they insisted, should rule out chaplains in legislatures, prisons and the armed forces, bar Bible reading in schools, require taxation of church property, forbid restrictions on Sunday commerce and so on.
Interestingly, at first these secularists did not claim to find this thoroughgoing separation in the First Amendment but, with allies like President Ulysses S. Grant, campaigned in the 1870's to detail separation in another constitutional amendment. Only when that effort failed did they switch to a strategy of constitutional interpretation.
The "modern myth of separation," Professor Hamburger writes, "omits any discussion of nativist sentiment in America and, above all, omits any mention of the Ku Klux Klan," which made separation of church and state a central element in its anti-Catholicism.
The Klan "exerted profound political power in states across the country and, probably more than any other national group" in the first half of the 20th century, "drew Americans to the principle of separation," Professor Hamburger writes.
A book about separation of church and state in which the K.K.K. plays a more prominent role than the A.C.L.U. is a book sure to be noticed and, no doubt, debated. But Professor Hamburger insists that he had no intention of being polemical.
"I wouldn't want to suggest that one should not argue for separation because bad people did," he said in a July 4 phone conversation. In his book, he concedes that it may be prudent for churches and clerics to steer clear of partisan politics, and "separation may offer a plausible legal solution to a wide range of issues."
At the same time, he also writes that the metaphor of separation, especially when reinforced with the image of the wall, "has simplified and impoverished discussions of religious liberty in ways that have obscured the necessarily complex and textured relationships between civil and religious societies."
While declining to comment on the two recent First Amendment decisions, he suggested on the phone that looking at a notion like separation of church and state not only in the abstract but also in its concrete history might make people circumspect in their responses.
"I confess I've always had a somewhat cheery view of American history," he said. "This project deprived me of that."
