No, not the food but the legal scholar. Philip Hamburger teaches law at the University of Chicago and is a respected scholar, but his position on the first amendment religion clauses are quite troublesome. Jon Rowe reviews his latest book, Separation of Church and State, over at Positive Liberty. I think he's right that Hamburger focuses excessively on the actual phrase "separation of church and state" rather than on the idea behind it. He even claims that Madison did not argue for such a separation, though he clearly did.
He has also focused, in my view obsessively, on Hugo Black and his early KKK affiliation, as though the entire argument for separation can be traced to racism. This is nothing more than an attempt to poison the well and it is beneath the standards of such a prominent scholar to engage in it.
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No relation to Neil Hamburger?
I don't think so. I have Neil's first prank tape.
It's kind of "hit or miss." His style is sort of like an NC-17 rated Andy Kaufman (whom I love). Humor through being annoying as Hell.
His "stand up" character reminds me a lot of Tony Clifton.
Ed, you're a stickler for getting things right -- quoting people accurately. My recollection of the Hamburger book is different than yours. Hamburger is a serious scholar and I think you're completely wrong in your assertion that he is attempted to "poison the well" regarding Hugo Black's KKK affilation.
1) Black's affilation with the KKK is only notable because it's mentioned and these days any time you mention someone belongs to the KKK that's going to be notable and memorable. As I recall, Hamburger does not dwell on this. It's part of his evaluation of how a modern string of cases got started.
2) The affiliation with the KKK may be important because the case Separation case that Black most heavily influenced. I believe it was Everson vs. Board of Education. I would suggest that, if it's relevant, a historian is doing his job when he points such linkages out to us.
3) The KKK affiliation of a Supreme Court Justice was significant not because of that Justice's racism -- not even to impugn the specific Justice -- but because of the importance of Catholic schooling to that case. Black ruled in a way that, on the surface, might have been a direct contradiction of what one might expect. But Hamburger thinks there was a method to Black's madness.
4) Hamburger weaves a sophisicated, if not complex theory as to why Black ruled the way he did. His contention, which wouldn't fit well in a blog comment (and I don't completely recall anymore) had something to do with the fact that KKKers were on the side of disestablishmentarians because they were anti-Catholic. It's probably the most interesting and original concept in the book.
5) Coincidentally, the very creation of our government school system owes much to an early 1800s agreement between Protestants (especially Baptists) and Unitarians. Unitarians wanted "common schools" and Protestants wanted to "Christianize the Catholics."
Historically, and until quite recently, as Jon Rowe just covered on his blog, Baptists were disestablishmentarians as well. So most of the Protestant denominations made a pact with the Unitarians; that back-fired on the Protestants. Hamburger, whom I believe is a Catholic, is pointing out the moment of the Protestant Waterloo.
The Everson decision gave the Catholics a solitary victory on the use of school buses, but started a domino effect which drove the Christian God out of the government school system. Everson is a direct predecessor to the early 60s ban on prayer in schools.
Everson would've caused a great stir and backlash against the Court if Black hadn't led a majority of Justices to extend the right for communities to provide bus service to Catholic schools. Virtually no one read the fine print. But the disestablishmentarian Hugo Black wrote that fine print.
So is it wrong to ask the question? To my knowledge, before Hamburger, no one did. Merely asking a question, even an incendiary question, is not necessairly poisoning the well.
And, as you very frequently point out, it's important to quote people accurately -- so I hope that's helpful.
Jim-
It's true, of course, that there is more to Hamburger's theory than just a mention of Black's KKK ties. And you do remember his argument accurately. It's just that I find his explanation, though certainly unique and original as you say, to be fanciful to the point of near-silliness. His argument, in a nutshell, is that Black ruled the way he did in Everson because, as a former KKK member, he was anti-Catholic. But there are several reasons why I think this is a weak argument.
First, because it still wouldn't explain the other justices. Black merely wrote the Everson ruling for a majority of the court, so focusing so much on what might have motivated him specifically is a very weak argument against the validity of the ruling. Second, and most importantly, Everson came down in favor of allowing the state to bus children to Catholic parochial schools, a fact that is typically forgotten. Despite the fact that the ruling laid out a solid basis for church/state separation, it also ruled that there was no violation in the New Jersey case and allowed the state to continue bussing kids to Catholic schools. Surely if Black was motivated by anti-Catholic feelings, he would not have ruled in that manner. He could easily have written all the same text about the historical basis for the wall analogy and then ruled against New Jersey's bussing program.
There are other reasons to doubt Hamburger's analysis of Black's position as well, and Rowe does an excellent job of critiquing his analysis of Madison and Jefferson. I just don't find his analysis of Black to be in any way compelling, which leads me to conclude that it serves little purpose other than to poison the well. I don't doubt his sincerity and he is, as you say, a serious scholar. But I have had commenters show up on my blog before who took Hamburger's work to mean exactly what I suspected and ran with it, focusing obsessively on Black's KKK ties and not on the logic of the situation or the Everson ruling.
Ed, let me get this straight...
Others ("commenters") misused Hamburger's analysis ("took Hamburger's work to mean exactly what I suspected... focusing obsessively on Black's KKK ties") and that's his fault?
In addition, because Hugo Black ruled in favor of the bussing of Catholic school kids, the argument is all wet?
I don't recall for sure, but I believe (as I stated above) that Hamburger's argument regarding Hugo Black was quite a bit more sophisticated than you indicate. The decision on the Catholic bussing was a case of won the battle, lost the war. And, if I remember correctly, Hugo not only wrote the majority opinion, he was akin to a swing vote. The breadth of his judicial opinion as well as its long-term impact proved to be a tour-de-force.
But back to the point:
1) Others misquote Hamburger (they're probably Intelligent Design-types). But how is this an example of poisoning the well? I'm no debate expert, like those boys and girls at Liberty University, but certainly there's a rule about relevance and accuracy of a fact that supercedes any claim of well-poisoning, isn't there?
2) In your humble opinion, Hamburger's analysis sucks. He even says some (unrelated) things about Madison and Jefferson. How is this an example of poisoning the well?
I have so much to learn.
"The decision on the Catholic bussing was a case of won the battle, lost the war."
That's exactly what Hamburger argues.
The strength of Hamburger's work is his meticulous research and brilliant way of constructing his arguments.
I think, though, what people need to realize is that beneath that brilliance are some very interesting but still novel, controversial, and questionable claims. And that the facts he marshals can be interpreted in ways, and can support conclusions, far different than what Hamburger endorses in his book.
So Hamburger gets his history right when reading manuscripts and putting things into footnotes. But his analytical conclusions are questionable.
Because of his talent in meticulous referencing and footnoting, he even provides much ammo for critics of his assertions.
For instance, in reading the history of religious dissenters, he shows that they supported Madison's "no cognizance" standard (though, he doesn't spend nearly enough time on Jefferson's Statute, which dissenters also supported). And that standard looks something like a "Separation of Church and State," even if not put into so many words.
Similarly, he also shows when very prominent Founders did speak of "Separation," which Jefferson and Madison both commonly did.
I tried to focus only on the Founding period in my review. The KKK stuff was just a whole 'nother can of worms.
Jim Babka wrote:
No, but I think he engages in much the same thing. The fact that he is a serious scholar does not mean that he doesn't bring his own biases to the table and that those biases don't influence his analysis. And given the extreme weakness of his argument here, I think this particular position is an example of those biases entering his analysis. It's the only explanation that makes sense. That others who share his biases seize on the same irrelevant facts is just one bit of data supporting my conclusion.
Well yes, it's certainly an argument against his analysis. But there's more to it if you consider the wider context and I think I'll lay out that argument in more detail in a post all by itself.