Jim Lindgren, a law professor at Northwestern, explains how the concept of separation of church and state became part of the law of the First Amendment:
6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
October 21st, 2010 | 10:50 am
Very interesting. Why would the KKK be for separation of church and state?
October 21st, 2010 | 11:07 am
I would imagine as the Klan saw the increase of Catholic immigrants arriving, they did not like the idea that Papists might inflict the Whore of Babylon upon their lily-white Protestantism. If only they could have seen into the future and the likes of Biden, Pelosi, and the Kennedys, they would have realized that faithful adherence to the Church would not be the issue posed.
October 21st, 2010 | 11:13 am
Lindgren didn’t open up a comment box and perhaps for good reason.
This is the email I sent him (I don’t expect a reply b/c I’ve sent him a few other emails over the years to which he didn’t reply):
Jim,
In a general sense, I like Hamburger’s book and endorse the idea that “SOCAS” doesn’t properly vet constitutional religious rights, especially those that incorporate against state and local govts. I also think the research Hamburger et al. did with regards to the KKK and their anti-Catholic bias and endorsement of the separation principle is interesting.
However, to try to bring that up in an argument over the proper way to interpret the Constitution is weak. It’s the genetic fallacy/poisoning the well. And no, the evidence does not show Justice Black’s (or Rutledge’s) “Klan” mentality led them to decide the way they did in Everson.
Regards,
Jon Rowe
October 21st, 2010 | 11:14 am
I would guess fear of “papists” running the country?
(Kinda of funny now, considering the make up of the Supreme Court.)
October 21st, 2010 | 11:33 am
I understand that Black was a virulent anti-Catholic. When some of these types talk about “the Church”, or make generic references, you know they are not talking about the National Council of Churches. It will be interesting to see what the impact of having a Court with no protestants of any stripe on it will be. The urbanized Catholics and Jews who now make up the Court certainly would not look on the current Church as the “whore of Babylon.” (Though no doubt some of them would certainly like to curb its influence).
October 21st, 2010 | 11:34 am
Hugo Black joined the Klan in 1923 and was elected to the Senate in 1926 with their backing. He eventually left the Klan but was never forthright in explaining why he joined the Klan nor did he ever acknowledge the Klan’s critical electoral support. He was a Jeffersonian to the core, with all of its defects….
October 21st, 2010 | 11:44 am
Why? Pretty nasty anti-Catholic bigotry. The Klan was convinced that American Catholics were going to turn the US into a Papal state. Cf. Mr Hamburger’s fine book for many examples. Here’s one from klansman Hiram Wesley Evans on p. 407:
“[T]here is the undeniable fact that the Roman Church takes an active part in American politics. It has not been content to accept in good faith the separation of Church and State, and constantly tries through political means to win advantages for itself and its people — in other words, to be a political power in America, as well as a spiritual power.”
Also, from Hamburger, pp. 408-9, we have this from the pseudonymous 93p1KNOIOK:
“The Klan is pledged to maintain inviolate and perpetuate forever the principle of complete separation of Church and State, and the Roman Catholics fight this, because no sincere and devout Roman Catholic does or is permitted to believe in the separation of Church and State. The Roman Catholic Church is first, last and forever opposed to the separation of Church and State and in favor of the absolute control and domination of the State by the Roman Catholic Church.”
Read Hamburger’s book. There’s quite a bit there about the Blaine Amendment, too.
October 21st, 2010 | 11:49 am
So we have Black in 1926, Black in 1947 when Everson came out and Black in 1954 when he voted in the MAJORITY of Brown v. Bd. of Edu. The idea that he had his “Klan hat” on during that later era strikes me as patently absurd.
October 21st, 2010 | 12:06 pm
No hat necessary. Once a bigot always a bigot . . . . He was 40 when he was elected to the Senate as the Klan’s candidate. His membership and support of the Klan was not a youthful indiscretion – - we are talking about a grown man here.
October 21st, 2010 | 12:07 pm
…and, for the record, Black was a member of the Klan at the height of their lynching frenzy in the 1920s.
October 21st, 2010 | 12:13 pm
“Once a bigot always a bigot…”
Then why did he vote in the majority in Brown?
October 21st, 2010 | 12:19 pm
Bigotry is not exclusively defined as animus against African Americans. Black despised Catholics throughout his life. See “Catholics and the Supreme Court: An Uneasy Relationship”
By James Hitchcock
(from Catalyst, June 2004)
“Perhaps the most revolutionary changes on the Supreme Court began in the 1930′s. That is when President Franklin D. Roosevelt began to choose justices inclined to approach the Constitution in a “broad” and “flexible” spirit. Some of his appointees were crudely anti-Catholic.
Hugo L. Black (1937-71) was a lapsed Baptist who, like many ex-fundamentalists, retained anti-Catholicism as the sole legacy of his one-time faith. He had once belonged to the Ku Klux Klan, and although he later repudiated the Klan’s racism, he never condemned its anti-Catholicism. Indeed, his son said that the one thing Black had in common with the Klan was his suspicion of the Catholic Church. This explains why Black considered Governor Alfred E. Smith of New York unqualified for the Presidency in 1928 because of his Catholicism.
As a lawyer in Alabama, Black successfully defended a Methodist minister who shot and killed a Catholic priest in front of witnesses. Why? Because the priest had officiated at the marriage of the minister’s daughter to a Puerto Rican. Black fought the case with unusual aggressiveness, making anti-Catholic comments in the process.
Black, a Mason, was offended by the fact that the Catholic Church condemned Masonry; by contrast, he characterized its adherents as “free-thinkers.” In effect he did not think Catholic schools had the right to exist, and even warned against the “powerful sectarian propagandists” [Catholics] who were “looking towards complete domination and supremacy of their particular brand of religion.”
October 21st, 2010 | 1:22 pm
Wasn’t the Klan of the 1920s and 30s (as opposed to the earlier and later versions) more anti-Catholic than racist, though?
October 21st, 2010 | 2:27 pm
Not only is bringing up Justice Black’s anti-Catholic bigotry to argue against SOCAS “poisoning the well”/the genetic fallacy, it also engages in a non-sequitur. That is, even IF Black was an anti-Roman Catholic bigot when Everson was decided, it doesn’t follow that he would deny Roman Catholics their religious rights.
John Adams was an anti-Catholic bigot, but, nonetheless believed in respective the religious rights of Roman Catholics.
“I do not like the late Resurrection of the Jesuits. They have a General, now in Russia, in correspondence with the Jesuits in the U.S. who are more numerous than every body knows. Shall We not have Swarms of them here. In as many shapes and disguises as ever a King of Gypsies, Bamfield More Carew himself, assumed? In the shape of Printers, Editors, Writers School masters etc. I have lately read Pascalls Letters over again, and four Volumes of the History of the Jesuits. If ever any Congregation of Men could merit, eternal Perdition on Earth and in Hell, According to these Historians, though like Pascal true Catholicks, it is this Company of Loiola [Ignatius Loyola -- Ed.]. Our System however of Religious Liberty must afford them an Assylum. But if they do not put the Purity of our Elections to a severe Tryal, it will be a Wonder.”
- John Adams (1735-1826), Letter to Thomas Jefferson, May 6, 1816, quoted in The Founders on Religion: A Book of Quotations, James H. Hutson, editor (Princeton University Press: 2005), 44-45.
October 21st, 2010 | 3:17 pm
“John Adams was an anti-Catholic bigot, but, nonetheless believed in respective the religious rights of Roman Catholics.” I’m not sure what the heck that sentence means, but to compare Hugo Black, who was an active member of a terrorist organization (an organization that summarily executed blacks and Jews [see Leo Frank]) with John Adams is a repulsive comparison. Adams believed in the rule of law and defended British soldiers who had fired on a mob in Boston, and at the height of his revolutionary fervor never countenanced mob violence. Black not only countenanced it, he sustained it and supported it with his work and his financial support. If you can’t see that distinction then this exchange is fruitless.
October 21st, 2010 | 4:04 pm
A charitable reading of my sentence shows that I meant “respecting” not “respective.”
No, the comparison of John Adams to Justice Black is just fine. Neither men was a saint. I showed you his anti-Roman Catholic bigotry in that quote. And if we want to dig up more dirt (“cough,” the Alien and Sedition Acts) on J. Adams to bring him down to Justice Black at his worst, I can.
October 21st, 2010 | 5:13 pm
Your lack of any sense of perspective, or any capability to draw a distinction between joining the Ku Klux Klan and signing the Alien and Sedition Acts into law is chilling. The Alien and Sedition Acts were lawfully enacted, and then lawfully dismantled. You’re inability to see the difference between the lawless acts of the Klan, and of someone like John Adams, is disturbing. We are not talking about Sainthood, far from it. I think you need to learn a little more about the Klan, judging from your comfort level with Black’s active membership in that murderous organization.
October 21st, 2010 | 6:31 pm
No Publius. I’ve been at this game long enough to smell the poisoning the well logical fallacy. And all of your hemming and hawing doesn’t change that. “Lawlessness.” What if somehow the Klan and their misbehavior were “lawful” as was Apartheid?
The bottom line is the Klan smear of Black is actually a very weak argument, in fact, Hamburger’s weakest against SOCAS. It’s like saying we should support Affirmative Action because David Duke is against it.
October 22nd, 2010 | 12:14 am
Doesn’t the First Things style guide require any article or blogpost arguing that “The historical roots of current First Amendment doctrine render it invalid and illegitimate because of the personal flaws and political agenda of Hugo Black” to be followed within 24 hours by an article or blogpost arguing that “The historical roots of current Roman Catholic doctrine are in no way invalid or illegitimate because of the personal flaws or political agendas of the Borgia Popes”?
October 22nd, 2010 | 10:53 am
Mr. Rowe,
Your unwillingness to engage with the facts is something you may want to think about. There is no “Klan smear.” A smear entails falsehood. Facts are uncomfortable things. Black was a member (an officer) of the Ku Klux Klan. The Klan routinely lynched blacks and Jews at the time he was a member. No smear. Can you accept those facts? Or are you blinded by ideology?
October 22nd, 2010 | 11:36 am
Everyone knows Justice Black, like President Truman was a member of the Klan and that George Washington was a slaveholder.
To use blemishes on an historical figure’s record to try and IMPUGN their work is a logical fallacy known as poisoning the well. It’s also a non-sequitur to suggest an anti-Roman Catholic bigot wouldn’t respect the rights of Roman Catholics. The John Adams quote illustrates that.
Can you accept these things?
October 22nd, 2010 | 12:19 pm
Right. OK. Washington owned slaves (you forgot to mention Jefferson, et al). John Adams supported the Alien and Sedition Acts. Apt comparisons to joining an organization that routinely murdered people (nice tactic, by the way, of repeatedly refusing to deal with that fact in these exchanges). To claim that the Alien and Sedition Acts were on par with lynching, that’s a solid factual argument. Harry Truman, btw, since its important to know that facts, paid ten dollars to join the Klan and then quit weeks later when he was told by his Klavern that he could not hire Catholics for county jobs.
Black’s own son attests to his anti-Catholicism. He vigorously defended the murderer of a priest who dared to allow a white girl to marry a Puerto Rican (any comment?). He believed as all good Klansman did, that the Catholic Church “look[ed] towards complete domination and supremacy of their particular brand of religion.” (Any comment?)
Black was an officer in an organization that routinely murdered various ‘undesireables.’ But none of this, none at all, had any role to play in his jurisprudence. Once he exchanged his white robes for his black robes, all of his prejudice disappeared.
October 22nd, 2010 | 12:41 pm
I didn’t claim any of the things as “equivalents” as you are accusing me of.
You are the one who is blinded by ideology. I didn’t even defend the Everson decision or the idea that SOCAS as a proper constitutional metaphor.
Further, I didn’t deny Black’s Klan membership or the terrible things they did either.
Rather, I pointed out the FACT that it’s a logical fallacy to impugn his work based on his past membership in the Klan.
As far as his Klan hat having anything to do with his jurisprudence, Black’s voting for Brown and his record in other civil rights cases simply belies it. The evidence actually suggests he (rightly) left that part of his life behind him as he claimed to have.
October 22nd, 2010 | 12:43 pm
He believed as all good Klansman did, that the Catholic Church “look[ed] towards complete domination and supremacy of their particular brand of religion.” (Any comment?)
Yes, it sounds like it could have come from the mouth of John Adams.
October 22nd, 2010 | 12:49 pm
And thus, John Adams, as all good Americans do, joined a terror organization devoted to killing Blacks, Jews, and Catholics.
October 22nd, 2010 | 1:02 pm
Publius,
You are arguing like a Leftist who wants to trash the American Founding because they owned slaves.
As a libertarian, that is neither a Leftist or a Rightist, I think I am a fair judge of these tactics. But there is one notable conservative scholar, Thomas West of U. Dall. who raised a similar point about Hamburger’s work. All the hubub about Black and the KKK was perhaps done to woo his Leftist law professor colleagues who seem disproportionately obsessed with race, class and gender issues. Yet, every leftist law professor I encountered knew of Black’s Klan connection but thought he redeemed himself with his liberal jurisprudence.
I was just looking around the Internet and apparently, Jay Sekulow (who did a book on personal religious convictions of SCOTUS justices) found Black joined a Unitarian Church while on the bench. Yeah. Some Klansman he.
October 22nd, 2010 | 1:24 pm
This is the last comment I’ll make – - Black hated the Catholic Church, and elevated Jefferson’s letter to the Danbury Baptists into a position it did not deserve. It was a letter, pure and simple. You can defend the position, but to deny that Black’s views toward Catholicism did not influence his jurisprudence is off the mark. Anti-Catholicism was a litmus test for mid-twentieth century progressives, and it shaped modern jurisprudence in the church-staet arena.
October 22nd, 2010 | 1:30 pm
And I stand by comment that you commit the genetic fallacy when you try to impugn Justice Black’s motives for Everson — a decision where all 9 Members voted for Jefferson’s Separation metaphor, including the one Roman Catholic on the Court.
And by the way, if you read everything I wrote, I didn’t even defend Black’s dicta in Everson, reading Jefferson’s letter as the proper constitutional metaphor (the holding of Everson actually allowed for church and state to be connected!).
October 22nd, 2010 | 1:37 pm
And for the record, I am a baptized Roman Catholic (I never made it beyond that). I don’t hate Roman Catholic Church. My two grandmothers died in the Church and who knows, I may as well. Though I don’t see myself changing my mind on issues where I disagree with them.
In researching the history of the Church, I have actually defended Petrine doctrine against evangelicals because I find the RC understanding of Matthew 16:16-18, in a plain textual sense, to be more convincing than the evangelical interpretation where Jesus would be using extremely clumsy language if he renamed Simon-Peter “the rock” but were actually referring to Himself when he referred to “the rock” upon which he would build His Church.
I just call things as I see them.
October 24th, 2010 | 4:22 am
Thomas G. West:
http://www.claremont.org/publications/crb/id.926/article_detail.asp
This is part of the larger story of the rejection of the founders’ understanding of liberty and justice over the past century and its replacement today by the progressive or liberal view of liberty and justice. This is the proper theoretical framework for understanding the dramatic change that Hamburger so convincingly details. It is not primarily Justice Black’s Ku Kluxism or the anti-Catholicism of some Protestants that animates the opponents of the founders’ understanding. They were simply made the dupes of liberals, who, as Hamburger emphasizes, made effective use of Protestant hostility to Catholicism in the service of a goal that was ultimately just as hostile to Protestants as to Catholics and Jews.
In this respect, Hamburger’s book has misled many of its early readers. In the conservative reviews that I have seen, the reviewers have focused on Hamburger’s discovery of the anti-Catholicism that so often animated those who used the slogan “separation of church and state”—as if this revelation were enough to discredit today’s liberal anti-religious agenda. Conservatives like to dress up their arguments in terms that they think liberals will approve of (although they seldom do). But there is a world of difference between Protestants who used the separation argument as a tactical device to get government to promote Protestantism rather than Catholicism, and liberals who are hostile to Christianity altogether.
Hamburger is aware of this, but the book perhaps does not give it due emphasis.
October 24th, 2010 | 10:20 pm
The KKK smear against Justice Black is sometimes offered as an explanation for his opinion in Everson v. Board of Education–even though all nine justices agreed on the principle that the First Amendment called for separation of church and state (so it was hardly just Black’s doing) and Black led the majority of five in holding that the principle did NOT preclude state funding of transportation of students to parochial schools.
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