Philip Hamburger’s Weakest Argument Against SOCAS

Note: I like Hamburger’s book. I think it deserves much of the praise it got and that he is a top notch scholar. However that doesn’t make it immune from criticism or serious error.

Jim Lindgren, no religious fanatic he (a self described atheist), and another top notch scholar (in my opinion; he wouldn’t be blogging at Volokh if he weren’t) has a post which peddles the weakest aspect of Philip Hamburger’s work.

The following is an email I sent Prof. Lindgren. (I don’t expect a reply because I’ve sent him a few other emails over the years to which he didn’t reply):


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.


Jon Rowe

Ed Brayton did a post on the matter a few years ago which raises a similar point.

I also noted on this First Things thread, this argument isn’t just “poisoning the well”/the genetic fallacy, it’s also 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 respecting 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.

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2 Responses to Philip Hamburger’s Weakest Argument Against SOCAS

  1. tom van dyke says:

    I agree with Jon that Hugo Black’s background has nothing to do with the wisdom of the Everson decision. It is indeed “poisoning the well,” since 4 other justices [not KKK-affiliated] joined the 5-4 decision.

    On the other hand, Catholicism—Papism—was excluded from John Locke’s “Letter Concerning Tolerance” since followers of the Roman Catholic religion owe their first allegiance to a “foreign prince”—their religion over their patriotism, their God over their country.

    Yes, Jefferson said they’d go beyond Locke in America as regards tolerance, but John F. Kennedy, as late as 1960, was obliged to declare,

    “But because I am a Catholic, and no Catholic has ever been elected President, the real issues in this campaign have been obscured–perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again–not what kind of church I believe in, for that should be important only to me–but what kind of America I believe in.

    I believe in an America where the separation of church and state is absolute–where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote–where no church or church school is granted any public funds or political preference–and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him.”

    America’s first Muslim president will be similarly obliged to give such a speech. This is damned interesting. And I can’t even imagine what the first Catholic president of a Muslim country might say.

  2. Jon Rowe says:

    Interestingly all 9 of the Justices seemed to vote for Black’s separation as metaphor concept. The 5 member majority, ironically, voted to let church & state connect in that case. The 4 dissenters wanted the wall higher. Don Drakeman has found, apparently, some dirt on Rutledge. But you aren’t going to find it on all 9. And there was ONE Catholic Justice on the Court then as well.

    The real error in Everson, as Philip Munoz pointed out in a law review article on the EC, is that it constitutionalized the Founding era Virginia point of view on Church-State issues, when that view was not a consensus.

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