Steven Waldman and Philip Hamburger
The Long Experiment of American Democracy
Steven Waldman is the author of Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty. He is the founder and former editor of Beliefnet and now heads Daily Bridge Media.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He’s the author of Separation of Church and State and Is Administrative Law Unlawful?
July 2, 2014
STEVEN WALDMAN: We got a lot wrong before we started to get things right. And it really was as a result of many years of — of kind of botched experiments and horrible persecution that we collectively started to learn another way. And we should remember that, up until 1962, we had state-written prayers in schools, not moments of reflection, or moments of silence, but a prayer, written by the state, read in school, up until 1962. So it really has taken all the way up until current day for the ideas of religious liberty that were hatched and articulated in the founding years to really fully take root.
[Music: “Seven League Boots” by Zoe Keating]
KRISTA TIPPETT, HOST: As Americans celebrate the Fourth of July, we take a long look at the real, messy, forgotten stories of American democracy — democracy as a work in progress from 1776 to today. There was an official church in Massachusetts, no less, until a half century after the American revolution. The phrase “separation of church and state” is not in the Constitution and didn’t enter constitutional law until 1947. And there was sectarian discrimination and violence in American cities — Protestant on Catholic — as late as the 20th century. We explore memories that can measure and deepen our response to new, young democracies on their own tumultuous paths now.
I’m Krista Tippett, and this is On Being.
[Music: “Seven League Boots” by Zoe Keating]
MS. TIPPETT: This hour, we recover two conversations from our archives that never aired in their entirety. In 2003, I interviewed constitutional scholar Philip Hamburger, now a professor at Columbia University Law School, on the surprising discoveries he made as he wrote his book Separation of Church and State.We begin with my 2008 conversation with journalist Steven Waldman. He had a front row seat on the origins of the contemporary American culture wars, as a reporter for Newsweekand U.S. News & World Report, and then as the founder of Beliefnet.
MS. TIPPETT: So, what is it about the work you’ve been doing or your personal perspective on events of the moment or in these last couple of years that led you to want to write a book on this subject right now?
MR. WALDMAN: Uh, not a day would go by where I wouldn’t get an email from some interest group or advocacy group on left or right, claiming that the Founding Fathers agreed with them about something. And it was — it was amusing, because I’d have a liberal group one day saying the Founding Fathers agree with our position on prayer in school. And the next day, I would get an email from a conservative, religious, Christian group, saying the Founding Fathers obviously agree with us on this.
So, I — I got curious about that. And as I, uh, as I went deeper into it, what I came to realize is that the culture wars, the kind of hostile attacks, had so distorted our sense of history that we really didn’t have the foggiest idea how we ended up with religious freedom in America. I also just came to believe that a lot of what we believe about why we have religious freedom in America is wrong, and that it’s kind of an important thing for us to understand, so we can treasure it.
MS. TIPPETT: Mm-hmm. You know, I was recently at Princeton University, and I spoke with some young undergraduates who — who were doing senior theses in the religion department. And one was doing her work on the established churches in the early American history. And this had come as a complete shock to her. And I just actually think most of us, either we don’t learn it, or we don’t internalize it, that — that is, into the 1830s there were established churches in the early American republic. And that all the states were experimenting, as you point out, with different kinds of relationships between church and state. And that all the original colonies, except Rhode Island, had official or semi-official religions.
MR. WALDMAN: Right. Most people tend to think of — well, the Founding Fathers were aware of persecution in Europe, and they wanted to avoid official religions in Europe. And that’s partially true. But almost all of the colonies had official or semi-official religions. And, in fact, you can look at the first 150 years of colonial history as one experiment after another of people trying to have state-supported religion. Uh, you know, in — in New England, it was the Congregational churches, the Puritans, and in the Southern states, it was the Church of England, and Pennsylvania, it was Quakers.
And, the one thing that all of these experiments had in common is they all failed. It is true that America was, uh, settled to be a Christian land. It really was. The second half of the sentence is that after 150 years of trying that approach, the founders then took a turn and rejected the approach of the previous 150 years. The founders rejected the approach of the grandfathers and said that didn’t work, and we have to try something different.
MS. TIPPETT: I mean, you even say the first part of that — of the American story, the first 150 years is — is ugly.
MR. WALDMAN: Well, it — it is and — and you have to have the caveat that in ways that the history books don’t reflect, faith was acting as a very powerful positive force in individual colonists’ lives to get through some very difficult times. So, as a personal matter, faith was positive and important. But, in terms of the state relationship with religion, there’s really a lot that is quite painful. For instance, the treatment of Quakers in early American history, was not just a case of harassment or persecution. It was illegal to be a Quaker. And Quakers were thrown in jail and in fact, executed. There’s, you know, a case of a woman named Mary Dyer…
MS. TIPPETT: Yes.
MR. WALDMAN: …who I feel like every school child ought to know the story of Mary Dyer. She was a…
MS. TIPPETT: Did you — did you discover this — this story of Mary Dyer when you were doing this research for the first time?
MR. WALDMAN: I had never heard of her before. And she was an upstanding woman in the community and she was a church-going person, and then she later became a Quaker. And they sentenced her to death, uh, along with two other Quakers. They whipped her. And as she marched out to the oak tree on the Boston Commons, uh, they had drummers playing so that she would not be able to speak out and say anything to the crowd. And there they executed her in the — in the Boston Commons. And, you know, eventually persecution like this became known and became, a source of shame in the Colonies.
MS. TIPPETT: And who was they — they executed her. Would that be the government of Massachusetts or the church?
MR. WALDMAN: Well, you know…
MS. TIPPETT: The Congregational Church?
MR. WALDMAN: …it’s a good question, because at the time, the government and the church were sort of the same thing.
MS. TIPPETT: Yeah.
MR. WALDMAN: It was the church fathers and the government working together that held the trial and sentenced her to death. There’s a second bout of persecution that I think is also really significant, uh, and has not had nearly enough attention, which is, there was a lot of persecution of Baptists throughout the Colonies that, I think, has — has been written about. What was really interesting was that one of the pockets where the persecution was most intense happened to be in a couple of northern Virginia counties at the time that James Madison, was a young man and living there. Uh, it actually was part of Northern Virginia that — that gave us Jefferson, Madison, Washington, Henry, and George Mason.
MS. TIPPETT: That’s amazing.
MR. WALDMAN: So the — yeah, very fertile ground. So for Madison, the question of religious liberty was not something he was reading about only in Locke or hearing about as a European phenomenon. He was literally seeing it in his local courthouse with Baptists who were being thrown in jail, simply for preaching their own gospel.
MS. TIPPETT: It does seem like, um, we have transposed, as you kind of described at the beginning, our — our own questions and our — the divisions of our time onto our understanding of the Founding Fathers. But you found a much more diverse and complicated picture, not only of the — of the history in general, but of these individuals in particular, and it seems to me that James Madison especially captured your imagination.
MR. WALDMAN: Yes. It seems like nowadays, there’s kind of two scripts and you have to choose one or the other. One script says that the founders were all religious Christians and therefore, they would oppose separation of church and state.
MS. TIPPETT: Yeah.
MR. WALDMAN: And the other script says the founders all wanted separation of church and state in part because they were secular, or they were deists. This dichotomy would have seemed utterly baffling to the founders. For one thing, the founders who supported separation of church and state mostly did it because they wanted to promote religion, not discourage religion.
MS. TIPPETT: Right.
MR. WALDMAN: It was the whole idea was that this was a strategy for encouraging the growth of religion by leaving it alone. And there were others who thought that the way to encourage religion was by having the state support it, but they both agreed that the goal was to encourage religion. And that’s — that’s just not a viewpoint that’s reflected in the modern debate. And I did find James Madison to be the most interesting one on this because he was really the one who came up with the — the most holistic, uh, vision, uh, for religious liberty that combined, first what he was hearing from evangelical Christians, um, Baptists…
MS. TIPPETT: He went to Princeton, didn’t he, which at that time was an evangelical college.
MR. WALDMAN: Exactly. I mean, there’s a lot about Madison and the evangelicals that is — is amazing. First of all, we think of evangelicals now as being opposed to separation of church and state because a lot of the religious, conservative leaders have taken that position in recent times. Uh, in Madison’s era, it was the other way around. And in fact, we would not have religious liberty without the 18th century evangelicals. They were Madison and Jefferson’s foot soldiers in the drive for religious liberty. And often they were the philosophers who helped them think through the case for religious liberty.
MS. TIPPETT: Yeah, and what was that — what was their stake in that philosophically and theologically? It seems to me it was — there was also a theological, um, argument — an evangelical argument for separation of church and state.
MR. WALDMAN: Some of the evangelical support for separation of church and state was obviously practical, which was that the evangelicals were being persecuted.
MS. TIPPETT: They were in the front line to be persecuted without it, right.
MR. WALDMAN: Yeah. And so, they — they had an obvious interest in — in breaking up the authority of the established churches, which were preventing them from praying the way they wanted.
MS. TIPPETT: Mm-hmm.
MR. WALDMAN: But there was a theology to it, as well. First of all, they always cited Jesus’ invocation that His world was the kingdom of heaven, and that it was Caesar’s role to regulate government and the civil society. That separation was part of it. But there was something even deeper than that, which is that the evangelicals believed in a personal relationship with God that didn’t have to always go through intermediary institutions, didn’t have to go through clergy or church. It was a small “d” democratic approach.
MS. TIPPETT: Mm. Mm-hmm.
MR. WALDMAN: So that kind of individual liberty approach to religion obviously meshed perfectly with the revolutionary spirit that Jefferson and Madison and others were arguing as it related to the crown, saying also the individual has the right to liberty.
[Music: “Soon Or Never” by Punch Brothers]
MS. TIPPETT: I’m Krista Tippett and this is On Being. Today — remembering the real, messy story of American democracy, in an age of new, struggling democracies. Steven Waldman is a journalist and author of the book, Founding Faith.
MS. TIPPETT: Talk to me about what you learned about Jefferson, because I think Jefferson is the one people feel they probably know more about, or that most of us feel we know more about, more than James Madison.
MR. WALDMAN: Well, first, I want to say that when it comes to this topic, any time anyone starts a sentence with, the Founding Fathers believed…
MS. TIPPETT: Yeah.
MR. WALDMAN: …you should immediately have a lot of skepticism. Because one of the things I’ve learned is that there is no such thing as the Founding Fathers, as a unitary block. When it comes to these issues, they actually disagreed with each other. And they were kind of close to the action. They were the ones who wrote the Constitution, and they still disagreed with each other about what it meant.
MS. TIPPETT: [laughs] Right. So, they wouldn’t be surprised that we sometimes disagree about what it means?
MR. WALDMAN: Yeah, and I sort of feel like you know, we should cut ourselves a little slack here. Because if the ones who wrote the Constitution didn’t agree with each other about what it meant, then, we should cut ourselves a little slack. I mean, if our opponents are wrong, they’re wrong at the margins. They’re not evil, they’re mistaken.
MS. TIPPETT: Hmm. Let me ask you something about Thomas Jefferson. You write that understanding Thomas Jefferson’s take on faith means understanding a fury — his fury. What are you talking about there?
MR. WALDMAN: You know, when you read Jefferson’s letters, not so much the public documents like the Declaration of Independence, but his personal letters, he seems absolutely furious, enraged at a few things. He’s enraged at the church. He’s enraged at everyone who he thinks distorted Jesus’ message. And I mean everyone, starting with Paul and the apostles, who he thought very little of and he thought Paul was corrupt. He thought Calvin should be put in a straightjacket.
MS. TIPPETT: Calvin was an atheist, he thought, right?
MR. WALDMAN: Yes. And — and, you know, insane, and he thought the priests were charlatans, and basically that, you know, the history of the world was about 1,000 years of corruptions of Jesus’ words and that that process began almost immediately. Uh, and he was very angry about it. And I think one of the things that is lost when we talk about Jefferson is we look at him as a deist, and we think that it’s a kind of a — a calm, abstract approach. And it is true that he was very hostile to the, um, the church of the time, and to the literal interpretations of the Bible. But it’s almost like he was like a — a, um, you know, a parent who’s trying to find a kidnapped child. And he was on a quest…
MS. TIPPETT: Wow.
MR. WALDMAN: …to rescue Jesus from what he thought had happened, uh, to Jesus. So, you know, famously, he actually, um, embarked on a project which resulted in what is now called the Jefferson Bible.
MS. TIPPETT: Yes.
MR. WALDMAN: And the Jefferson Bible, he started it actually while he was in the White House. Uh, and then, uh, did it again in later years, in 1819. And, he literally sat there with four versions of the Bible — Greek, Latin, French, and English — went through with a knife or a scissors, and cut out the parts that he liked most and pasted it into a fifth volume. He created his own Bible. And, you know, he cut out miracles.
He cut out most of what we — the Christmas story. He cut out most of the Easter story, Resurrection is gone. And in Jefferson’s Bible — the rock is placed in front of the tomb and it never moves. Jesus never rises. But it is not a anti-religious book. It’s Jefferson’s passion for Jesus and his need to rescue and resuscitate Jesus is really palpable. Now part of this is that Jefferson himself was attacked repeatedly as being an infidel, and an atheist, and hostile to religion. And this obviously really wore on him. And, I think he, in some ways, identified very much with Jesus that way as — as both of them were men whose were attacked, uh, by the priestly class for their beliefs. It’s sort of sad, when you think about it, that Jefferson believed that he was living in a land at that time where he actually couldn’t be public about what he really believed.
MS. TIPPETT: Hm. I want to ask you about the notion of divine providence, which is a theme that runs through statements and speeches, including political speeches, through the Revolutionary War, and the drafting of the Constitution, especially, I find it in your telling of George Washington and of things he said, and the way he described that moment in American history of what happened here as being divinely ordained.
How do you think that still imprints us today? Or I mean, as you read all of that, as you read the historical context, did you feel that that echoes powerfully in our own sense of this country? And also, is there any contradiction or disjunction between the way we internalize that now and the way somebody like George Washington internalized it?
MR. WALDMAN: Mm-hmm. Well, first thing I would say is that, you know, there was a lot of controversy about whether George Bush used too much religious rhetoric during his presidency. And all I can say is if you look back at George Washington’s presidency, he makes George Bush look like a, you know, a secular humanist ACLU board member.
MS. TIPPETT: [laughs] Okay.
MR. WALDMAN: Um, you know, George Washington, and — and the other founders, but particularly Washington — invoked, uh, God’s favor and providence repeatedly. Did it as head of the Continental Army, and he did it as president. And he believed that God was watching over America, and that a lot of the, uh, unusual and unlikely victories in the Revolutionary War, and in the history of the young country, came about because God was intervening, and helping. And he almost looked at it and said, like, what other possible explanation could there be?
MS. TIPPETT: Right.
MR. WALDMAN: We’re completely outnumbered. We have the — we’re going against the best army and navy in the world and we’re winning anyway? It has to be God’s involvement. Um, there was one really big difference, though, in the way they talked about divine providence and the way it often is talked about now. Now when we talk about God bless America, there is this sense that we are inherently worthy of God’s support just by being Americans. They certainly felt that the experiment and the, uh, adventure that Americans were embarking upon was — was noble and worthy of God’s support. But the early proclamations for prayer that the Continental Congress offered and President Washington offered always had two parts. One was, uh, asking God for His support and praising God for His support. The other part was confession. It was confessing our sins, uh, as colonists and pledging to improve ourselves in order to be worthy of God’s support.
MS. TIPPETT: Hmm. So divine providence wasn’t endowed once for all time.
MR. WALDMAN: Right.
MS. TIPPETT: And it could be…
MR. WALDMAN: Divine providence was not…
MS. TIPPETT: …it could be lost…
MR. WALDMAN: …it was not something we were promised, uh, you know, at the point of the Mayflower forevermore.
MS. TIPPETT: Mm-hmm.
MR. WALDMAN: It was something that we were granted but had to keep earning again and again and again. And that our immoral behavior, uh, could easily alienate God and remove His support.
MS. TIPPETT: You know, another large global dynamic that this all brings to mind for me, this little bit — it’s not what we’ve been talking about, but as I — as I read your account of, uh, not just — certainly there was lots of anti-Catholic sentiment, there has been in American history even into the 20th century. But in that first 150 years, there were people hanged on the Boston Commons. There was persecution and violence.
Um, and it makes me think that — of conversations I’ve had with Muslims these past few years. Who see them — experience themselves in their countries to be engaged in an internal crisis within their faith that may take some time being resolved. Um, and how little perspective we, in the United States, who — where we talk about being out there to encourage and create and support democracy, but we don’t seem to have much of a memory of how very difficult it in fact was. That it was a matter of 150 years, when — and there was still real violence and religious persecution, sectarian violence, even in our experiment, which has ended up in a good place. Um, I don’t know. Did you think about that when you were — when you were looking at this history?
MR. WALDMAN: Yeah, we got a lot wrong before we started to get things right. And it really was, uh, as a result of many years of — of kind of botched experiments and horrible persecution that we collectively started to learn another way. And the founders deserve an enormous amount of credit because they did not continue with the history of their fathers and grandfathers. They actually looked at history and decided to take a different course, didn’t have to be that way. So they had the wisdom to look at what had happened and chart a different course.
But even at that point, it’s not as if, you know, it — it went straight from, uh, James Madison’s pen right to the national archives. You then had a political process for the passage of the First Amendment, and then you had, you know, almost 200 years of evolution past that where these notions of religious liberty grew and grew and grew. We should remember that up until 1962, we had state-written prayers in schools, not moments of reflection, or moments of silence, but a prayer written by the state read in school, up until 1962. It was a long process of taking these ideas and gradually seeing them permeate American culture.
MS. TIPPETT: And I mean, even though on…
MR. WALDMAN: And…
MS. TIPPETT: …a more dramatic level, I mean, I look at — it was not as though on July 5, 1776, established churches ceased to be in — in the United States, right? I mean, when was the last disestablishment? 1833? Something like that?
MR. WALDMAN: In Massachusetts. Right.
MS. TIPPETT: Yeah. I mean, that — that’s…
MR. WALDMAN: And you — it was an amazing…
MS. TIPPETT: …50 years.
MR. WALDMAN: It was an amazing period. The period from 1776 to around 1833, when the nation was kind of throwing off the old way without quite knowing yet what the new way was. And several states didn’t change until, you know, deep into the 1830s. And then you had the Civil War. Because remember, even past 1833, even though you no longer had establishments — formal establishments, you still had all sorts of religious discrimination in the states.
It was only after the Civil War with the 14th Amendment that you began a gradual process of applying the First Amendment to the states. So it really has taken all the way up until the current day for the — the ideas of religious liberty that were hatched and articulated in the founding years to really, fully take root.
[Music:“Good Religion” by The Blind Boys of Alabama]
MS. TIPPETT: You can listen again and share this conversation with Steven Waldman through our website, onbeing.org.
Coming up…Columbia University Law Professor Philip Hamburger on the astonishing things he learned for the first time when he set out to write a book on the forgotten origins of “separation of church and state” — including the culture of religious prejudice that compelled Catholics to establish their own schools.
I’m Krista Tippett. On Being continues in a moment.
[Music:“Good Religion” by The Blind Boys of Alabama]
MS. TIPPETT: I’m Krista Tippett and this is On Being. Today, for the Fourth of July, a surprising reality check about the long road of American democracy. The esteemed constitutional lawyer Philip Hamburger was stunned by almost everything he discovered when he researched his 2004 book, Separation of Church and State.
That phrase itself was first coined in 1802 by Thomas Jefferson, in a letter he wrote right after he became president, to the Danbury Baptist Association of Connecticut. They had asked why Jefferson would not proclaim national days of fasting and thanksgiving, as Washington and Adams had done before him. He replied by making reference to the first amendment of the Bill of Rights, writing: “…I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
But Jefferson then added this summary clause: “Thus,” he wrote, “building a wall of separation between church and state.” The Danbury Baptists ignored this language. It only entered U.S. constitutional law nearly 150 years later, through a 1947 legal opinion authored by Supreme Court Justice Hugo Black. And Black was a member of the Ku Klux Klan. The KKK, in its American heyday, was not only racist but staunchly anti-Catholic and pro-“separation of church and state.”
MS. TIPPETT: I would like to start with how you got into this, and why you cared about this, and how you got into the project.
PHILIP HAMBURGER: I got into this utterly by accident. It was really the last thing I planned to do. I had many other projects I wanted to pursue. One afternoon I was just skimming through some 18th century sermons, which are a wonderful source of knowledge about 18th century culture and politics, and I kept on coming across some strange references to separation of religion and government, or separation sometimes, of church and state, and that struck me as rather odd. Uh, and what was particularly strange was that these sermons were not advocating separation of church and state.
MS. TIPPETT: Mm-hmm.
MR. HAMBURGER: They were actually accusing others of holding this pernicious view. Um, and what struck me as all the more strange, of course, was that the folks who were being accused of holding this view, religious dissenters and minorities, I happened to know from my other work, never advocated the separation of church and state or separation of religion and government.
MS. TIPPETT: Right. And I mean, that is an interesting place to start. That this phrase initially was coined as — as really sort of a caricature.
MR. HAMBURGER: It was a way with which establishment ministers made fun of, uh, or tried to slander, uh, minority ministers who were seeking religious liberty.
MS. TIPPETT: And then there’s Thomas Jefferson, um…
MR. HAMBURGER: Yes. Thomas Jefferson is often viewed as the father of separation of church and state in this country because, of course, he wrote a letter to the Baptists in 1802 in which he talks about the First Amendment in terms of separation of church and state. Uh, the Baptists in Connecticut had been seeking to get rid of their state’s establishment of religion, and were not having a very successful time of it. So they write a letter — the Danbury Baptist Association writes a letter to Thomas Jefferson, uh, asking for his political support, and they record this in their minutes, and they await an answer. And when he wrote back, instead of simply saying that he supported their attempt to get rid of an establishment of religion, he talks about separation of church and state.
Now most people, when thinking about Thomas Jefferson, actually wonder, “why did he write this and what does it mean?” which I think are very reasonable inquiries. But what I think is a good starting point is to think about what the Baptists did when they got his letter. And far from celebrating it, rather than publishing it in the newspapers and hoping to use it in their political campaign against an establishment, they come — become very silent and they don’t even record it in their minute book when they get back.
MS. TIPPETT: Which is fascinating because they — as you said, they recorded the fact that they had made this decision to write to him, and you would think that it would be worth recording that a president wrote you back. This is the — the letter in which he coins the phrase, “the wall of separation.”
MR. HAMBURGER: Yes. Although I — I think he draws this language from an earlier establishment minister, Richard Hooker, who again had used it as an accusation in the 1590s against dissenters. But Jefferson has such a tin ear that he doesn’t really see that and instead elevates it as a standard of religious liberty. Uh, now why did he do this? It’s probably for political reasons rather than to help the Baptists. Uh, the phrase, separation of church and state or separation of religion and politics, becomes popular in America in 1800 during the election of Thomas Jefferson. His opponents had accused him of being an infidel and an atheist. Um, in fact, I think more accurately, he was a Deist heading toward Unitarianism…
MS. TIPPETT: Yes.
MR. HAMBURGER: …but that didn’t matter politically, and his friends decide — decide to defend him by telling his critics, who are mostly clerics, uh, Congregationalist ministers, by telling them that they should keep politics and religion separate. In other words, they should not exercise their freedom of speech in criticizing Thomas Jefferson. And so when he writes to the Baptists, he’s picking up a campaign slogan, which has been used to silence his critics. But that’s a large part of the story. Oddly enough, it’s through a popular slogan, and in fact through rather prejudiced politics, that this phrase becomes a constitutional principle.
MS. TIPPETT: Okay. And there, in that part of the story — and now we’re moving into the 19th Century, right?
MR. HAMBURGER: Mm-hmm.
MS. TIPPETT: Um, you remind us — and Americans have such a short historical memory — of things we don’t want to remember in our history, anti-Catholicism — which it’s almost impossible to imagine, um, to the degree that this existed. I mean that — that in the 1830s, Catholic churches were burned down by Protestants.
MR. HAMBURGER: Yeah, it’s — it — it is odd. It was a complete surprise to me, and I must say that this history has quite changed my view of — of the development of American law. I tended to think of it as a general trend towards progress. I now have some doubts. Yes, in the 1840s, when large numbers of Catholics, particularly Irish Catholics, come to this country they encounter a fair degree of prejudice from Protestants. Not all Protestants, but certainly many. And in some cities the Protestants organize into fraternal organizations, Nativist organizations in the sense that they viewed themselves as being native born, as — un — unlike the, uh, foreign born Catholics. And the Nativists, at times, became so intense in their animosities that they end up burning down churches, and in some cities going so far as to engage in full scale riots, destroying Catholic neighborhoods. In Philadelphia at one point, the militia is so outnumbered that it actually loses, uh, to the mob even though the militia has canons and ends up firing them outside the portals of churches. Um, it’s really quite impressive.
MS. TIPPETT: These are Protestant mobs in the City of Brotherly Love.
MR. HAMBURGER: Which was a source of some embarrassment afterwards, I must say, for the residents of Philadelphia.
MS. TIPPETT: Right. You know, and let’s say this, I — I grew up with a Southern Baptist grandfather who still did believe, I think, that the Pope was the anti-Christ. Okay? And so this is the early 20th century. I mean, we can remember some of this sentiment, although not that violence, but what did that have to do with — with the notion of separation of church and state and how that became more inculcated into American society?
MR. HAMBURGER: The Nativists, the anti-Catholic Protestants often turned to the phrase “separation of church and state” because for them it captured their vision of — of religious liberty, namely, a freedom not only from government but perhaps also from the church, from this ecclesiastical organization, which they saw as a threat to liberty.
MS. TIPPETT: The Catholic church?
MR. HAMBURGER: Yes, the Catholic church.
MS. TIPPETT: But so they didn’t see their ecclesiastical structures as threatening?
MR. HAMBURGER: No, and that’s one of the curious parts of the story, isn’t it? Many Protestants assumed that they acted as individuals, whereas the Catholic church acted as a church. And so if a school, for example, inculcated Protestantism and it had Protestant ministers as teachers, it nonetheless did not have to be separated from government and indeed could and should receive government funds from their point of view. Because there might be many Protestant denominations who participated in an organization, and in that sense it didn’t belong to any particular church. And what’s more, Protestants, they assumed, responded to the individual conscience, uh, whereas Catholics, they thought, were subservient to the Pope. And in that sense had to have acted as part of a church, which therefore had to be separated from government, which of course meant that Catholics had to be separated from getting jobs as teachers in public schools, that Catholics ought not vote in elections, um, that, uh, Catholics really should be separated from public life altogether.
MS. TIPPETT: And the result of this principle that they had would be that in fact, Catholics were excluded but Protestants would be fully integrated…
MR. HAMBURGER: Included. Uh, separation in this sense is very much the, uh, the point of view of a majority, which is quite comfortable with its power because it was a means of excluding Catholic minority.
[Music:“Early in the Park” by Hauschka]
MS. TIPPETT: I’m Krista Tippett and this is On Being for the Fourth of July — remembering the real, messy story of American democracy, in an age of new struggling democracies. Philip Hamburger is a law professor at Columbia University.
MS. TIPPETT: The most shocking, uh, part of the story that you tell is the implication of the Ku Klux Klan in the solidification of the principle of separation of church and state. Did you know that before you began doing your research?
MR. HAMBURGER: No, not at all. I didn’t know much about any of this really and, uh, I confess, I was quite astonished. And yet, oddly enough, once one thinks about it, it makes perfectly good sense. In fact, there is nothing unusual about the Klan. It’s just yet another Nativist organization, which therefore advocates Nativist, anti-Catholic perspective, including separation of church and state. And although it was the most prominent and is the one now known best, it is not all that different from dozens and dozens of other organizations from the 1840s up through the 1930s and 40s.
MS. TIPPETT: But it — it is shocking because of the associations that we now have with the Klan.
MR. HAMBURGER: Yes. We — we now think of the Klan mostly as a racist organization, and it was that. But it also had other animosities, and in that sense, I suppose, they were more varied than is often assumed. And we often think of the Klan as an organization of persons profoundly ignorant, uneducated and, uh, perhaps just in the South. But of course, the Klan was a fully American organization, which, uh, crossed most state boundaries. There was the Roger Williams Klanton in Rhode Island and, uh, in the northwest they actually win political elections. Uh, they can dominate the 1924, uh, Democratic Convention. So this was hardly a — a hidden organization. Although they espouse secrecy, they were actually quite public in many regards.
MS. TIPPETT: Can you remember the first time that you stumbled across this and started to realize that this was a factor?
MR. HAMBURGER: Uh, I actually do not recall that. It was — it doesn’t stand out particularly in my mind. Although I must say the work I did on the Ku Klux Klan was fascinating. I do remember that very well. I went down to Birmingham, Alabama, and found some marvelous materials there. And so, one of the things I wanted to figure out is not merely what were the prejudices, but what did Klansmen and Klanswomen — because there were a lot of Klanswomen — um, think for example, when they were looking at a burning cross? Or what did they think when they were discriminating against Catholics? I wanted to try to get within their prejudices so as to understand them.
MS. TIPPETT: And did you feel that you got there?
MR. HAMBURGER: Oh yes, because the Klansmen and again, the Klanswomen write a fair amount about what they’re up to. They write poetry and songs. Um, and, for example, when they are looking at burning crosses, far from thinking that they’re being prejudiced, they think that in fact they are helping to illuminate the world. Uh, they say for example that a fiery cross is a reminder and, I quote, “That Christ is the light of the world and therefore, the cross could dispel ignorance, superstition and intolerance.” And of course, these are code words about individual freedom from ecclesiastical authority, i.e. from the Catholic church.
Or I’ll just give you another quotation, um, one Klansman says that, “The fiery cross, blazing in its glory with its radiance like the Statue of Liberty, enlightens the world with liberty, both civil and religious.” And they think these, of course, as they’re burning crosses in Catholic neighborhoods and outside churches. It’s really quite extraordinary.
MS. TIPPETT: And you have said that among their concerns and their values, nothing perhaps was more important than separation of church and state.
MR. HAMBURGER: Yes, which is not to say, of course, that many of them were not racists. On the other hand, many were actually less concerned with race than with religion. A prominent illustration of this would be Hugo Black.
MS. TIPPETT: Yes.
MR. HAMBURGER: Uh, who was a leader of the Jefferson elite Klan in Birmingham. And he was actually quite liberal on questions of race but he, on some occasions, indicated that he very much appreciated the principles of the Klan. And what he meant by this, surely, was not the violence, uh, whether anti-Catholic or anti-black, um, but rather principles such as, anti-ecclesiasticism and particularly its anti-Catholicism, um, and perhaps especially separation of church and state.
MS. TIPPETT: I — I guess I — I need to push this point. Why — why did they care so much? What was in it for them, the separation of church and state?
MR. HAMBURGER: Um, well, one can look at this in a somewhat cynical point of view, uh, and then one can look at it more from a perspective of their ideals. The cynical perspective would simply be that separation of church and state is a principle with which one can exclude Catholics from various jobs in government, including jobs as teachers in public schools. However, I think that’s too limited a perspective. It strikes me that most people are quite sincere and idealistic, even Klansmen and Klanswomen, and it just so happens their ideals were things like separation of church and state.
Now why does this appeal to them as an ideal? Viewing themselves as Protestants and Americans as individuals, um, who are uninhibited by, uh, anything but loyalty to government and to God, they feared ecclesiastical organizations as a potential threat to their own mental liberty. And from this perspective, the Catholic church seems very much a threat to the purity of Democratic life in the United States. And this gets back to the whole question of religious purity. In some senses, they’re seeking a religious purity. In other ways they’re seeking a sort of political purity.
MS. TIPPETT: Um, we need to point out — you mentioned Hugo Black who became an Associate Justice of the Supreme Court who was a Klansman and who in fact, wrote the opinion for the majority in the New Jersey case, which, as you say, finally — what — how would you — what was the import of that? I mean, that is now our milestone.
MR. HAMBURGER: In the case, Everson versus Board of Education, Hugo Black wrote for the court, uh, that the First Amendment created a separation of church and state. And that was the first time that the Supreme Court had made separation of church and state a measure of its Establishment Clause jurisprudence. It had eluded to the phrase earlier, but in 1947 in Hugo Black’s opinion, it becomes the standard for the Establishment Clause in the United States.
MS. TIPPETT: Okay.
MR. HAMBURGER: Both at the state level and the federal level.
MS. TIPPETT: So it’s — it’s really very recently that it is this constitutional right the way we understand it now.
MR. HAMBURGER: Yes. And in some ways, the history of separation of church and state illustrates how an idea that once was held by just a few Americans then becomes popular through rather intense prejudices. And being celebrated as an American ideal, many other Americans, some of whom were not necessarily prejudiced but simply want to be fully American and have American ideals, end up attaching themselves to this phrase of assumption that it is an American constitutional right. And then justices of the Supreme Court, having been brought up in a culture in which anti-Catholicism and, above all, separationism, are celebrated as American ideals, um, end up adopting the phrase as part of their constitutional jurisprudence. In a curious way, it’s an illustration of the living Constitution but not necessarily at its best.
MS. TIPPETT: You know, there has been a — in Americans’ reactions in the process of becoming aware of Muslims in our midst and Muslims in the world since 9/11— one of the reactions has been, if only they got separation of church and state like we get separation of church and state. How do you respond to that?
MR. HAMBURGER: Well, I wouldn’t want to share with them one of the worst features of American constitutional jurisprudence. I would have thought we’d want to share with them one of the best, which is disestablishment. Religious liberty is a principle that I hope peoples across the globe can enjoy and appreciate. However, the religious liberty that is genuinely in the Establishment Clause, of freedom from the government, establishment of religion, rather than the separation of church and state is what I hope we can see not only in America but perhaps elsewhere too. Though I might add to that, that we sometimes elevate our own notions, even our best notions too highly. Remember that a country such as England has a fully established church and yet also profound religious liberty.
And so it seems to me that we can universalize our ideals too much. What fundamentally is important is a sense of tolerance, and that can manifest itself in many different institutional arrangements. I happen to like, as many Americans do, our own constitutional arrangements, the disestablishment and the First Amendment. On the other hand, what’s of prime importance is not any particular set up through law, but rather the tolerance that gives rise to an acceptance of others even if they disagree profoundly.
[Music:“Hymn For The Greatest Generation” by Caspian]
MS. TIPPETT: Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia University Law School. He’s the author of Separation of Church and Stateand, more recently, Is Administrative Law Unlawful?
And in closing, here’s a final forgotten moment of the American story with journalist and author Steven Waldman.
MS. TIPPETT: I think I want to end by asking you about the story you tell at the very beginning of your book, which is the story of cheese. The gift of cheese.
MR. WALDMAN: The mammoth cheese.
MS. TIPPETT: Yeah, why did you — why did you take that after all you did as the beginning of your story?
MR. WALDMAN: Well, how could you resist a such an eloquent cheese? I mean, it’s just an amazing scene. You have Thomas Jefferson, tall, magisterial, standing there in a black coat at the doorway of the new presidential mansion in Washington, D.C. It’s New Year’s Day, 1802. He’s standing there looking out at this sight. And what is the sight? The sight is this horse that’s pulling a dray with this enormous cheese, 1,235 pounds of cheese, made by 900 cows. I mean that’s hard to — that part I really have a hard time getting my head around.
MS. TIPPETT: Yes, yeah.
MR. WALDMAN: Nine hundred cows worked together to create this cheese for Thomas Jefferson. It was four feet in diameter, and seventeen inches high. And, in addition to this being a big cheese, it is a really, truly eloquent cheese, because on the side, it says “Rebellion to Tyrants is Obedience to God.”
MS. TIPPETT: Right.
MR. WALDMAN: And then, you think some more, like who on earth gave Thomas Jefferson a cheese of this size? Why did they go to the trouble to get these poor cows to make this one cheese for Thomas Jefferson? And the interesting thing is that it was the evangelical Christians. John Leland, the Baptists, that made this cheese as a gift for Thomas Jefferson. They believed that he was one of their great heroes, because Jefferson’s approach to religious liberty, which really did call for a strict separation, was going to be the approach that led evangelical Christians and Baptists to have the most freedom to worship as they saw fit, and that was going to lead to a religious flourishing in America.
[Music:“Attaboy” by Yo-Yo Ma & Stuart Duncan]
MS. TIPPETT: Steven Waldman’s book is Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty. He was creator and editor of Beliefnet and is now head of Daily Bridge Media.
You can listen to this show again and share it, or hear my entire unedited conversations with Steven Waldman and Philip Hamburger through our website — onbeing.org. We’ve also created a playlist of other shows from our archives that illuminate democracy in fresh ways. And you can get each week’s show before it airs with access to our entire archive — through the new On Being app for iPhone and Android.
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