Is there any publication today as consistently interesting as First Things? Example: today, they have a piece by Columbia Law professor Philip Hamburger about the Supreme Court case Trinity Lutheran of Columbia v. Comer. This may well be a significant Establishment Clause case, given the issues and the Justices’ positions. If you are legally inclined, the petitions and briefs briefs are, of course, available through SCOTUSBlog. The case has produced some interesting ecumenical alignments. For example, the amici brief of the US Conference of Catholic Bishops is also signed by the Mormons, the Salvation Army, and the Reformed Church in America. Hamburger’s piece is not, actually, much of a discussion of the legal issues in play with Trinity Lutheran. Instead he offers readers some background on the so-called Blaine Amendments, which are at the root of the Trinity Lutheran case.
Hamburger demonstrates—conclusively, we think—that the Blaine Amendments were the product of a pervasive anti-Catholicism in the United States in the late 19th century. Indeed, as we shall see, Hamburger makes the case that there was a bias against organized Christianity generally in many quarters, though the Church of Rome was taken as the archetype of organized Christianity. Hamburger explains:
Maine Representative James G. Blaine (1830–93) was born to a Catholic mother and a father who later converted to Catholicism; as a child, he apparently was baptized in the Catholic Church. As an adult, however, he had presidential ambitions. He does not seem to have harbored anti-Catholic animosity, and he refused to be drawn into “any avowal of hostility or unfriendliness to Catholics.” But in an era of profound anxieties about Catholics, including fears about their voting power and about the danger of their introducing papal tyranny, he was eager to be elected. He therefore proposed a constitutional amendment in late 1875 that would have rewritten the First Amendment—applying it to the states, and adding that “no money raised by taxation in any State for the support of public schools … shall ever be under the control of any religious sect.”
Blaine’s amendment appealed to such fears by preventing tax money from coming under the control of any “religious sect.” Existing constitutional provisions against establishments of religion did not bar public spending on education from reaching schools with religious affiliations, and Blaine’s amendment did not propose to alter this arrangement except by excluding Catholics. The Catholic Church, being attached to its orthodoxies, had theological objections to cooperating theologically with Protestants, and it therefore could only operate schools that were distinctly Catholic or “sectarian.” In contrast, Protestants were willing to join with Protestants of other denominations in running schools. Thus, when the Blaine Amendment stated that public money could not go to institutions belonging to any one “sect,” it effectively proposed to prevent money from reaching Catholic institutions—without cutting off funds for institutions shared by Protestant denominations.
(Emphasis supplied.) Hamburger goes on to explain, however, that Blaine’s amendment was manifestly an effort to advance his presidential hopes in 1876. And it made some headway in the Republican Party: the 1876 platform supported Blaine’s amendment. But it was obvious that Blaine’s amendment would not succeed and that the 1876 platform’s anti-Catholicism was merely an attempt to catch votes. Hamburger notes that, when Blaine’s amendment, which had passed the House overwhelmingly, reached the Senate, Blaine did not even attend the vote. It failed.
However, as is often the case, the amendment had a life of its own. Hamburger observes that many states adopted amendments to their constitutions along the lines of Blaine’s failed amendment to the federal constitution. Some of these amendments are fairly specifically anti-Catholic, others are more broadly anti-religious. And this is where Hamburger’s essay is indispensable. He explains that the Blaine amendment fits into a broader context of liberal thought in the late 19th century:
In appealing to anti-Catholic prejudice, Blaine was reaching out not merely to the unwashed masses, nor even merely to narrowly anti-Catholic nativists, but more broadly to theological liberals. As a Jewish commentator observed in 1875, “this issue will unite the whole Liberal element in this country with the anti-Catholic element, and these two elements form a vast majority all over the land.” Blaine thus could capture the votes of both traditional Protestants and theological liberals.
Nativists were not as theologically traditional in their anti-Catholicism as one might suppose. Their animosity against the Catholic Church arose not so much from the doctrines of their particular churches as from their broader theologically liberal concerns about church authority. They complained that the Catholic Church’s assertions of authority (including its hierarchy, its creeds, and its dogmatic claims of truth) threatened the mental independence of individuals. Catholic claims of priestly and especially papal authority thus seemed to prevent individual Christians from choosing their own faith, as necessary for salvation; they also seemed to prevent citizens from thinking and voting independently, as necessary for democracy.
Many theological liberals thus found themselves aligned with nativism. Although theological liberals viewed the Catholic Church as the model of what they disliked in religion, they typically expanded upon this narrow animosity to develop a broader hostility toward all hierarchical churches, Catholic or Protestant.
(Emphasis supplied.) Hamburger’s point bears repeating: liberals and nativists alike shared anti-Catholicism in the late 19th century. Indeed, the liberals and the nativists were the same people in many cases, according to Hamburger. But for many liberals, especially those who identified as capital-L Liberals around the 1876 election, the Church of Rome was not the sole enemy, even if she was the most prominent. Hamburger explains that these “Liberals” opposed all hierarchical ecclesial bodies with definite Christian doctrine.
In this same vein, Richard Garnett, at Notre Dame, has a piece at SCOTUSBlog from August 2016 discussing this question in depth, and citing several scholars, including Hamburger, who have addressed the question of the Blaine Amendments in detail. Garnett wrote:
First, will the Justices acknowledge, and perhaps even engage, the actual history and purpose of no-aid provisions like the one invoked by Missouri in this case? The Eighth Circuit did not mention the term “Blaine Amendments” and instead gestured vaguely to, again, a “long history of maintaining a very high wall between church and state” and to Missouri’s embrace of a “more restrictive” version of separation. In fact, though – as Philip Hamburger, John McGreevy, Joseph Viteritti, Lloyd Jorgenson, and many others have shown – provisions like Missouri’s were adopted by states (and sometimes required by the federal government) not to implement an abstraction like “separation” but rather to marginalize and undermine Roman Catholicism in America. These provisions’ origins, regardless of how the laws are justified or described today, are not easily disentangled from nineteenth-century America’s pervasive anti-Catholicism and nativism or from a broader ideological, nationalist project of using state-mandated public schooling to inculcate “American” values and loyalties. Justice Thomas discussed this history in his 2000 opinion in Mitchell v. Helms and Chief Justice Rehnquist mentioned it in a footnote in Locke. Will the Justices, in Trinity Lutheran, deal with the elephant in the room?
(Emphasis supplied, but hyperlinks in original.) It is possible that the Supreme Court will hand down its decision in Trinity Lutheran on Thursday at 10 AM. However, whenever it does hand down its decision, it will be interesting to see the extent to which the Court grapples with the history of the Blaine Amendments.
But we can think about these questions before the Supreme Court makes its thoughts known. Hamburger points to a fundamental problem that all integralist Catholics—indeed, all orthodox Catholics—have to confront sooner or later: liberalism is incompatible with Catholicism. Consider Leo XIII’s teaching in Libertas praestantissimum:
What naturalists or rationalists aim at in philosophy, that the supporters of liberalism, carrying out the principles laid down by naturalism, are attempting in the domain of morality and politics. The fundamental doctrine of rationalism is the supremacy of the human reason, which, refusing due submission to the divine and eternal reason, proclaims its own independence, and constitutes itself the supreme principle and source and judge of truth. Hence, these followers of liberalism deny the existence of any divine authority to which obedience is due, and proclaim that every man is the law to himself; from which arises that ethical system which they style independent morality, and which, under the guise of liberty, exonerates man from any obedience to the commands of God, and substitutes a boundless license. The end of all this it is not difficult to foresee, especially when society is in question. For, when once man is firmly persuaded that he is subject to no one, it follows that the efficient cause of the unity of civil society is not to be sought in any principle external to man, or superior to him, but simply in the free will of individuals; that the authority in the State comes from the people only; and that, just as every man’s individual reason is his only rule of life, so the collective reason of the community should be the supreme guide in the management of all public affairs. Hence the doctrine of the supremacy of the greater number, and that all right and all duty reside in the majority. But, from what has been said, it is clear that all this is in contradiction to reason. To refuse any bond of union between man and civil society, on the one hand, and God the Creator and consequently the supreme Law-giver, on the other, is plainly repugnant to the nature, not only of man, but of all created things; for, of necessity, all effects must in some proper way be connected with their cause; and it belongs to the perfection of every nature to contain itself within that sphere and grade which the order of nature has assigned to it, namely, that the lower should be subject and obedient to the higher.
Moreover, besides this, a doctrine of such character is most hurtful both to individuals and to the State. For, once ascribe to human reason the only authority to decide what is true and what is good, and the real distinction between good and evil is destroyed; honor and dishonor differ not in their nature, but in the opinion and judgment of each one; pleasure is the measure of what is lawful; and, given a code of morality which can have little or no power to restrain or quiet the unruly propensities of man, a way is naturally opened to universal corruption. With reference also to public affairs: authority is severed from the true and natural principle whence it derives all its efficacy for the common good; and the law determining what it is right to do and avoid doing is at the mercy of a majority. Now, this is simply a road leading straight to tyranny. The empire of God over man and civil society once repudiated, it follows that religion, as a public institution, can have no claim to exist, and that everything that belongs to religion will be treated with complete indifference. Furthermore, with ambitious designs on sovereignty, tumult and sedition will be common amongst the people; and when duty and conscience cease to appeal to them, there will be nothing to hold them back but force, which of itself alone is powerless to keep their covetousness in check. Of this we have almost daily evidence in the conflict with socialists and members of other seditious societies, who labor unceasingly to bring about revolution. It is for those, then, who are capable of forming a just estimate of things to decide whether such doctrines promote that true liberty which alone is worthy of man, or rather, pervert and destroy it.
(Emphasis supplied.) We see in Leo’s discourse exactly what Hamburger was talking about in the passage we quoted above. The problem with Catholicism for the liberal of 1876 was that it denies the supremacy of the individual as judge of right and wrong, even in matters of religion. But Leo makes clear that it is—in addition to an affront to God’s sovereignty and to the authority that He has granted to the Church and the state in their spheres—a shortcut to tyranny and anarchy to grant the individual and his subjective reason the supremacy demanded by liberals.
Leo goes on to address squarely the question of church and state:
There are others, somewhat more moderate though not more consistent, who affirm that the morality of individuals is to be guided by the divine law, but not the morality of the State, for that in public affairs the commands of God may be passed over, and may be entirely disregarded in the framing of laws. Hence follows the fatal theory of the need of separation between Church and State. But the absurdity of such a position is manifest. Nature herself proclaims the necessity of the State providing means and opportunities whereby the community may be enabled to live properly, that is to say, according to the laws of God. For, since God is the source of all goodness and justice, it is absolutely ridiculous that the State should pay no attention to these laws or render them abortive by contrary enactment. Besides, those who are in authority owe it to the commonwealth not only to provide for its external well-being and the conveniences of life, but still more to consult the welfare of men’s souls in the wisdom of their legislation. But, for the increase of such benefits, nothing more suitable can be conceived than the laws which have God for their author; and, therefore, they who in their government of the State take no account of these laws abuse political power by causing it to deviate from its proper end and from what nature itself prescribes. And, what is still more important, and what We have more than once pointed out, although the civil authority has not the same proximate end as the spiritual, nor proceeds on the same lines, nevertheless in the exercise of their separate powers they must occasionally meet. For their subjects are the same, and not infrequently they deal with the same objects, though in different ways. Whenever this occurs, since a state of conflict is absurd and manifestly repugnant to the most wise ordinance of God, there must necessarily exist some order or mode of procedure to remove the occasions of difference and contention, and to secure harmony in all things. This harmony has been not inaptly compared to that which exists between the body and the soul for the well-being of both one and the other, the separation of which brings irremediable harm to the body, since it extinguishes its very life.
(Emphasis supplied.) In essence, Leo teaches that liberalism, whether it is extreme or moderated, is contrary to the divine and natural law. Indeed, Leo demonstrates with great clarity that the moderate liberal is incoherent at best and disingenuous at worst.
The Catholic should, therefore, be troubled by policies like the Blaine Amendments. As Philip Hamburger outlines brilliantly, they were proximately the product of anti-Catholicism deployed cynically to further James Blaine’s presidential ambitions. However, they fit into a broader context of liberal thought in the late 1800s. This liberalism has been squarely condemned by Leo XIII, who shows us that it is both contrary to the divine and natural law and incoherent on its own terms. The sort of liberal who concedes to Catholics (or any Christian committed to Christian teaching) the right to believe what they believe, provided they keep it out of the public square, is either confused about his liberalism or economizing with the truth.
Hamburger’s piece provides an excellent test case, since it deals with a policy unquestionably liberal and unquestionably anti-Catholic. It is hard to dodge the harder questions in the context of the Blaine Amendments, since they were explicitly motivated by liberal anti-Catholicism. But one cannot stop the analysis with the Blaine Amendments, not least since the policy they articulate is no less present today than it was in 1876. Indeed, if anything, liberalism has strengthened its hand since 1876. It is all around us, as ever-present as air. One can find it in other political contexts, in the workplace, in the popular press, and in entertainment. We live in a golden age of liberalism, as it were, and it is no less hostile to the Church than the world of 1876 that produced the Blaine Amendments. The Catholic must, sooner or later, confront this hostility.