Separation of Church and State

Anti-Establishmentarianism and the Klan

We in the British constitutional tradition are used to having an established church. The head of State in the United Kingdom is also the head of the Church of England. However, with the decline in power of the British monarch and the assertion of Parliamentary sovereignty, it has meant little. The headship may be dual, but the head has shrunken inexorably. Moreover, the fortunes of state established churches are not good. Historically, when government establishes a church it is usually a kiss of death. So, the Church of England has withered on the vine.

But in the United Kingdom it is very clear that what exists is the establishment of a particular national church–just one ecclesiastical denomination amongst many. In the United States, the issue has been subject to a breathtaking historical revisionist by the secularists. The secularists claim that the US Constitution forbids any religious establishment in the public sphere: not just of a particular church, but of religion in general. Thus, under secular revisionism, the State must either bestow equal favours upon all religions or none at all. Hence the attacks upon the public celebration of Christian festivals such as Christmas.

A more intelligent and less ideological reading the US Constitution establishes in rapid order that the US Constitution forbids any establishment of a church (not a religion) by the Federal Government. At the time of the signing of the US Constitution most states actually had some form of religious establishment–proving that the Constitution’s prescriptions had to do with limiting the Federal Government’s power to establish a national church, thereby preventing its overriding the authority of States in the matter.

The American colonies-turned-states viewed religious freedom differently. They offered different answers to questions of establishment of religion, non-preferential support of religions, punishment of blasphemy, Sabbath observance, and other religious matters. . . . Both traditionalists and voluntarists agreed that a religious foundation was critical to the health of the social order.
Hunter Baker, The End of Secularism, p. 82

Aaron Worthing recently republished some additional historical clarifications on the matter of the so-called separation of “church and state”.

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again

So as Lindgren says more recently, in a tongue-in-cheek fashion, “the KKK got its way.”

[Posted and authored by Aaron Worthing.]

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