The Politics of Separation: Review of Philip Hamburger's "Separation of Church and State"

Smith, Douglas G., "The Politics of Separation: Review of Philip Hamburger's "Separation of Church and State"" . UC Davis Law Review, Vol. 36, p. 967, 2003

Abstract:

This article reviews Philip Hamburger's book, "Separation of Church and State. Professor Hamburger argues in his book that the Establishment Clause has been re-interpreted due to changing political forces. The article concludes that Professor Hamburger's analysis of the Establishment Clause can be generalized to other areas of constitutional interpretation. From "due process" to "privileges and immunities" to "commerce," critical provisions of the Constitution are based on language that was understood by those who included it in the constitutional text to have a highly technical legal meaning. Over time, however, much like the concept of "establishment," such terms have been particularly subject to re-interpretation in the face of prevailing political forces. Accordingly, Professor Hamburger's analysis represents an example of a more general phenomenon: the susceeptibility of technical legal terminology to shifiting interpretation when confronted with powerful social and political forces that are at odds with the original meaning.

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