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Only in the late 19th and early 20th century, according to Hamburger, can we begin to see the emergence of a secular ideal of separation of church and state. And even when it did come, the modern conception of separationism was not as enlightened as it claimed. For one thing, a surprising amount of anti-Catholicism persisted into the 20th century; Paul Blanshard's book American Freedom and Catholic Power, a liberal attack on the Church, appeared as late as 1948, the year after Everson. And liberals who urged separation between church and state had their own distinctive form of religious faith. They could be as censorious and intolerant as the most fanatical believers. They tried to substitute secular rituals for religious ones. They held fast to transcendental ideals of national purpose. "While hostile to Christianity and any other distinct religion," Hamburger writes, "the Liberals glowed with religious intensity."

All these strands came together in the Everson case. Arch Everson, who brought the suit, was a member of an organization, the Junior Order of United American Mechanics, that had its origins in 19th-century nativism; his lawyer, Albert McCay, had represented similar groups in earlier cases. More important, the author of the Court's majority decision, Hugo Black, had been a member of the Ku Klux Klan, the most notorious anti-Catholic organization in American history. Hence Black's invoking the ideal of separation of church and state serves to remind Hamburger of the more unsavory history of this particular doctrine. And it thus throws into question decisions by the Court since Everson that rely on the doctrine of separation of church and state to keep religion out of American public life.

Hamburger has written an extremely important book. His prodigious learning and ingenious interpretations overturn the conventional wisdom, forcing even the most passionate defenders of separationism to recognize how much of the story of religious liberty has taken on mythical dimensions. Still, the book is written more as legal brief than as a work of historical scholarship. Hamburger has a point of view to push, and he pushes so intently that he sometimes undermines his own case.

If Hugo Black were really trying to impose on the country views he once held as a nativist, surely he should have declared public support for Catholic busing unconstitutional. Yet he did the exact opposite in Everson; as judges often do, he announced a principle that he did not apply to the case at hand. Hamburger claims that Black nonetheless "understood what he was doing." In this interpretation, Black was trying to sneak into law a conception of separation even while appeasing Catholics by allowing them to think they won the specific case. But jurisprudence since Everson suggests that Black did not know what he was doing, as Hamburger himself seems to acknowledge by citing Black's contention that he had won only a Pyrrhic victory. The Supreme Court has waffled back and forth on the question of separationism ever since, never able to set firm guidelines. Black's real legacy is that he left everyone confused, not that he had a predetermined plan.

One reason Black waffled, furthermore, was that he had changed his views considerably since the days he joined the Klan. There is much about Black not to like, even, if not especially, in his most liberal phase; he could be arrogant and brittle in his views. But it is extremely unfair of Hamburger to see the stain of Black's Klan membership behind his decisions as a judge. Black may indeed have had a lifelong suspicion of Catholics—Hamburger quotes an interesting observation by Black's son on that point—but Everson, because it in fact upheld the busing, can just as easily be interpreted as a way for Black to reach out to Catholics for his past sins, an estimable, rather than a despicable, thing to do.

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