Ed Brayton makes some great points regarding why we should take, with a grain of salt, Philip Hamburger's theory on Justice Black, the KKK, and the Separation of Church and State.
My review focused entirely on Hamburger's scholarly analysis of the Founding. Brayton's covers Hamburger on the modern, post-Everson, implementation of the doctrine.
Our two posts, taken together, nicely complement one another.
No doubt, Hamburger uncovers some very interesting and previously not well known history. The strongest part of his book is his scholarly attention to detail, and meticulous footnoting. The weakest part is his analysis, and his many assertions which do not necessarily follow from his meticulous research.
However, because of his immense research talent and rhetorical skills, Hamburger makes a very convincing case for his assertions, even if they rest, as Brayton and I have shown, on shaky grounds.
The following is a passage I wrote, but didn't include in my original review of Hamburger's book, describing Hamburger's talent.
Let me state from the start, Hamburger's engages in law office history. Not just ordinary law office history, but extraordinary law office history. Ordinary "law office" arguments selectively focus on facts that support the side for which you advocate and ignore of otherwise discount the facts that do not. Extraordinary law office history, on the other hand, anticipates nearly all of the facts and opposing arguments, brilliantly answers or otherwise explains them away, and makes it seem as though the argument advanced is the only plausible one. In other words, this is the type of law office history for which lawyers bill $500 plus an hour and supports multimillion dollar annual salaries for law firm partners.
And indeed, Hamburger did work in a prominent law firm before becoming a law professor.
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