Hamburger in Wilder Hall @ Oberlin -A.K.A the KKK and Separation, or WWJD?

Not a menu item in the canteen, but rather a lecture by Professor Philip Hamburger, Columbia University School of Law: “The KKK and the First Amendment.”

Prof. Hamburger is the Maurice and Hilda Friedman Professor of Law and an expert on religious liberty, individual rights, judicial review and censorship.  He has published extensively on constitutional law and history.  His publications include SEPARATION OF CHURCH AND STATE (Harvard, 2002) and LAW AND JUDICIAL DUTY (Harvard, 2008).”

Wilder 101 was filled to near capacity, not only by undergraduate students whose attendance was undoubtedly “encouraged”, but by a few faculty and interested post twenty-something adults as well.

What did we hear? Prof. Hamburger had a warm, open, easy to listen to approach, and the event was (for me) a pleasant experience.  After listening to  him, speaking with him afterwards, and seeing a review of his publications, I came to one conclusion: he does not support Separation of Church and State.

He began by giving a brief history of the second period of the Ku Klux Klan – from the end of the 19th century through the 1920’s – chronicling the KKK as one of the nativist organizations in the US in this period of large immigration from eastern and southern Europe, and giving specific examples of how strongly they supported Separation.    (I might note that my hypothesis is that the KKK’s emphasis on Separation was primarily motivated by animosity toward the Roman Catholic religion practised by many of these immigrants.) Moving on, he  emphasised what he felt are the differences between ‘establishment’ and ‘separation’, observing that the former is a horizontal concept, the latter vertical, and stated that in his opinion Separation was not in the Constitution.  (Full disclosure: as a member of Americans United for Separation of Church and State, I am not in agreement with this conclusion).  More interaction of government and religion would be a good idea, he asserted.  (Disagree strongly, again).  He also raised the issue of politicizing from the pulpit, and to disallow this is – in his opinion – a free speech issue.  It is the money, not the principle of the thing, I reply.  Clergy can – like any tax exempt organization – support specific issues, but not specific candidates.

I spoke to him post event, and suggested that since the phrase “established church” had a specific meaning in the 18th century which is not familiar today, we use “separation of church and state” instead: he did not agree.

Why so much on the connection of the KKK and Separation”  I propose this is an attempt to discredit the latter – shall we say poisoning the well?

He also told me he would sent me some documents which would cause me to remove my ACLU lapel pin: I expect not, but I shall remain open.

It is often of value to clarify one’s mental inventory by hearing a contrarian view, and therefore this was a valuable experience.

N.B.: I wonder if those “social conservatives” who who oppose Separation but insist that “the government” never does anything well, are concerned that “government” might negatively impact their religion(s), if the two became entangled?

In conclusion we might ask WWJD?  (What Would Jefferson Do?)

On his publications:

Separation of Church and State

Philip Hamburger

    In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.

    Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.

National Day of ?

We at Americans United for Separation of Church and State , NortheastOhio Chapter, will celebrate the ‘national day of prayer by hosting Susan Becker at the Bratenhal community center, speaking on marriage choice.

Other than feeling left out, we might begin plans for a National Day of Science,in which the citizens of our country are exposed to:

o what science is

o what science has done for us

o whay science can do for us

Free Speech protected from Child Online Protection Act

Having no better way to morn the sixth anniversary of the invasion of the sovereign nation of Iraq, I decided to attend  the ACLU program March 19, 2009, at the CWRU School of Law, on “Civil Liberties and Internet Censorship”, with guest speaker Chris Hansen,  who is  Senior National Staff Counsel, ACLU.

He began his presentation:  “We may be in the middle of academia, but I’m here to talk about sex!”, which got the attention of at least one audience member.  Mr. Hansen led us through a trail of litigation which began when the ACLU decided to challenge the Communications Decency (CDA) act, which was based on the principle of indecency which came from TV/radio. ( see: . In general the principle has been to allow anything in books, but to restrict TV/radio.  But what about this Ínternet’  thing?

Mr. Hansen told us that the ACLU decided to challenge parts of the law, but started with no knowledge of the either the  Internet or the World Wide Web.  They made progress on both technical and legal fronts, and won a landmark case: Reno vs. ACLU, and COPA is dead – long live free speech.

He also covered the Children’s Internet protection Act (CIPA, see:, which states, among other things, that libraries and schools – which accept federal funds – must protect children from indecency on the Internet.  This law raises a number of issues, and requires a number of definitions: it has been challenged, but is still in place.

Mr. Hansen is a very accomplished speaker, and the event – for those fortunate to attend – was both enlightening and entertaining.

In the post presentation reception held in the lobby, I engaged the speaker on a point that I find curious: Justice Potter Stewart said – of pornography – “I can’t define it, but I know it when I see it.”  In 1933, however, the Hon. John M. Woolsey, ruling on Ulysses (by Joyce): “…my considered opinion, after long reflection,  is that…nowhere does it tend to be an aphrodisiac.  “Ulysses” may, therefore be admitted into the United States.”

I asked him: “Weren’t there objective standards in place before Stewart made his clever observation? “.   “Yes”, he replied, “it was clever, but it was wrong”.