In a post below, I referred to Philip Hamburger's arguments concerning Hugo Black and separation of church and state as a weak argument that really amounts to an attempt to poison the well by focusing so closely on Black's early KKK ties rather than on the actual arguments put forth not only by Black but by lots of other scholars and judges as well. My friend Jim Babka has challenged my position, arguing that Hamburger's argument is more sophisticated than I am giving it credit for and that it's an argument that should be taken seriously. Since my original post really just glossed over this point, I'm going to draw out my argument in more detail here.
First, let's go into some detail on Hamburger's position. He argues, essentially, that the modern notion of a separation of church and state is a 20th century invention, foisted upon us primarily as a result of anti-Catholic bigotry. In particular, he focuses on Hugo Black, a prominent Supreme Court justice who was the first to cite Jefferson's "separation of church and state" language as an authoritative description of the intent of the first amendment's religion clauses in the case of Everson v Board of Education.
Why the focus on Hugo Black? Because as a young man, Black was a member of the Ku Klux Klan in his native Alabama. He left the KKK in the mid-1920s and disavowed the organization and its ideology, then went on to be elected to the Senate. In 1937, he was nominated by FDR to take a seat on the Supreme Court and he was confirmed by the Senate 63-13. Hamburger argues that Black still retained the racist and anti-Catholic bigotry of the KKK and that this explains why he was in favor of the separation of church and state. I'm going to argue that Hamburger's position is untenable and unsupported by the evidence.
First, let's dispose of the claim that the modern separation of church and state is a 20th century invention. This is patently false. There is no serious question that strict separation was one of the two main positions among the founding fathers on this question (the other being accomodationism; I am ignoring for the moment the presence also of a few outright theocrats in the bunch because their position was never taken seriously). Indeed, James Madison would have taken separation even further than most advocates would today, arguing against even military chaplains as a violation of the first amendment. Both the strict separationist and the accomodationist position can be traced directly to a faction of the founding fathers; neither is a modern invention.
Second, let's look at the question of whether Black's positions as a Supreme Court justice really followed the ideology of the KKK. Quite simply, it did not. His career as a Justice and the positions he took certainly are not consistent with the views he disavowed. I will provide three specific lines of evidence for my argument:
1. He was a staunch advocate of the doctrine of incorporation, that the Bill of Rights was applied to the states through the 14th amendment; this position was furiously opposed by the KKK at the time and still by Southern Nationalists today, who believed and still believe that the states should have the authority to do pretty much whatever they want to those within their borders and who condemn those "unelected judges" who dare to tell them they can't based on the Bill of Rights.
2. He was in fact an advocate for black civil rights on the court throughout his career. In Shelley v Kramer, he voted with the majority in striking down racial covenants in property deeds. In Brown v Board of Education, he joined a unanimous court in striking down segregated schools in the South. So solid was his record in support of black civil rights as a justice that he was burned in effigy in Alabama. This is obviously a strong indication that KKK ideology had nothing at all to do with his later decisions and rulings.
3. In Everson, while Black does use separationist language and invoke Jefferson's famous phrase as an accurate and authoritative description of the religion clauses, he also ruled that the New Jersey law that provided bussing for students to Catholic parochial schools did not violate the first amendment. Surely if he was motivated by anti-Catholic bigotry, he could easily have voted the other way. Indeed, Jim notes that he was a swing vote in that case and could have turned it around the other way to harm the cause of Catholic schools. But he didn't, and this is very important.
Hamburger's argument here, invoked by Jim as well, is that it was a case of losing the battle to win the war, that Black voted to support the Catholic policy but set in place a doctrine in the process that would ultimately lead to the anti-Catholic results that he wanted. But bear in mind that there is no evidence for this claim whatsoever, it presumes only to read his mind. This is what we call an ad hoc explanation - there's no positive evidence for it, it just must be true in order to explain away the inconsistency between Black's actions and the motives they are attempting to foist upon him. That's a very, very weak argument, especially given the broader context of his entire judicial career being strongly and consistently opposed to the bigoted position he had taken as a younger man.
It's also important to note that Black is but one justice. The separationist position has been taken by the majority of the Supreme Court for over 60 years, not to mention it is the majority position of most legal scholars. Are all of these people motivated by anti-Catholic biases? What about the many Catholics who take the same position? Are they anti-Catholic too? It just stretches credulity to the breaking point to focus on one out of hundreds, maybe thousands, of advocates of separation of church and state and point to his early anti-Catholic biases as the explanation for the entire position.
But also bear in mind that most of the founding fathers themselves were virulently anti-Catholic. Much of the argument against the "no religious test" clause focused on the fact that it would allow a "Papist" - the 18th century term for Catholic - to be elected to public office. Anti-Catholic bigotry was far stronger in our founding period than it was in the 1940s, virtually universal among the population and among the leadership, and in fact it was weakest among the advocates of strict separation and strongest among the enemies of separation. So if one is going to trace the anti-Catholic roots of the separationist and accomodationist positions, the argument actually cuts the other way.
There are reasonable arguments to be made against strict separation. The accomodationist position was a strong one, probably a majority view, among the founding fathers. But Hamburger's argument here is extremely weak, requiring ad hoc reasoning to explain away the evidence that is clearly against it. It's so weak that I cannot explain his advocacy of it except, ironically, as an artifact of similar biases to those he attempts to attribute to Black and use as a club to beat all separationists with.
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Hugo Black "When he was young, he dressed up in white robes and scared Black folks. When he got older, he dressed up in black robes and scared White folks."
You've really made your case. You're probably right.
But now I'm really confused. Did Hamburger "poison the well" or did he provide an "ad hoc explanation"?
I'm concerned about your consistent blurring of racial and religious bigotry in your analysis. You claim that Hugo Black really turned his back on his KKK views (you cite blacks and anti-catholicism). But why deal the race card? Are you poisoning the well? I don't recall Hamburger dealing with race issues. If you're going to add "southern nationalist" agenda to the mix, why not add, for example, anti-immigrantion and protectionistism. How did Hugo Black do on those issues?
I lack the time to write a point-by-point response. Your analysis has some excellent, compelling history. But when you start doing historical analysis, as Dr. Hamburger's critics point out, you must include all the historically relevant information. Here's a point you missed (and I encourage you to go back over your post and see what difference this might make): virtually the only religious private school movement of note at the time of Everson was the parochial (Catholic) schools movement. The Christian schools that are so common today didn't come about until after Engel v. Vitale. There was no evidence, yet, that Protestants were going to react adversly to Black's version of Separation. Quite the contrary: might he have thought that they would be pleased with his efforts because it would keep the Pope out of the classroom? [Remember, Everson is but 13 years before Americans worried that a Catholic was going to occupy the White House]
Jim Babka wrote:
Both, I think. The fact that he has to resort to an ad hoc explanation to explain away the inconsistency of the evidence with his position suggests to me that his motivation for offering such an explanation despite the evidence is less than honest and that it's really an attempt to poison the well rather than a serious attempt to explain Black's ruling. That conclusion is further supported by the fact that Hamburger spends so much time focusing on Black and not on the dozens of other separationists (Black was actually quite moderate on that question, in reality, as shown by his position in Everson) and their motivation.
I'm not blurring the issues at all, I'm just offering the obvious fact that he had abandoned his prior racial views as evidence that he way well also have abandoned his prior anti-Catholic views. If so much focus is going to be on the fact that Black was a member of the KKK as an explanation for his later rulings, surely the fact that in many rulings he was so diametrically opposed to the KKK's ideology that they burned him in effigy in Alabama is germane to the discussion. And this was true also in Everson, where the fact that he voted to allow government aid to Catholic schools would be strongly against the KKK's position as well (and a case where, as you noted, he was the swing vote, meaning he could have made sure it came out the other way). There simply is no evidence whatsoever for Hamburger's hypothetical explanation that Black did it to "lose the battle but win the war" when, with a mere switch of vote, he could have won both the battle and the war. All of this quite relevant to assessing the validity of Hamburger's position.
I have no idea. I'm not aware of any cases involving those issues that he ruled on, but perhaps there were some. Still, I think I've got more than enough evidence to make Hamburger's argument look highly unlikely at this point.
I just don't think this makes Hamburger's position any more tenable. Indeed, I think it cuts the other way. If he was so motivated by anti-Catholicism, and Catholic schools were the only parochial schools going at the time, it makes no sense that he would have voted to uphold government aid to such schools when A) his vote alone decided the issue, and B) switching his vote would not have harmed the interests of Protestants at the time. He could easily have had both - he could easily have had a strong statement for separation AND ruled that the New Jersey bussing aid to Catholic schools was a violation of the rule of separation, which would surely have been more consistent with what the KKK would have wanted than what he did. Hamburger's explanation simply doesn't add up in light of the evidence.