For First Amendment scholar Philip Hamburger, analysis of legal history serves to illuminate modern-day truths
As an undergraduate at Princeton, Professor Philip Hamburger cultivated an interest in freedom of speech. While poring over centuries-old cases on a university-subsidized trip to conduct research in a London archive, he became intimately acquainted with one of the most egregious historical examples of speech suppression: England’s Star Chamber, which, during the 16th and 17th centuries, mandated that all publications receive governmental approval.
During the decades that followed his Star Chamber research, Hamburger has become a prominent constitutional scholar and legal historian, with two award-winning books to his credit and a well-honed expertise in freedom of speech. In recent years, he has grappled with a modern-day Star Chamber problem. Beginning in the early aughts, fellow academics started contacting Hamburger and reported being unable to publish their research because it lacked a university stamp of approval.
Federal regulations state that anyone with a university affiliation who wishes to publish research involving human subjects must receive approval from the relevant school’s Institutional Review Board, or IRB. Failing to do so can jeopardize federal research funding.
Hamburger, Columbia Law School’s Maurice and Hilda Friedman Professor of Law, says he was flabbergasted upon learning of these limitations. “My immediate reaction was, ‘Wait a minute—that’s unconstitutional,’” he recalls. “‘It’s prior licensing, and prior licensing is what the Star Chamber did, and that’s banned by the U.S. Constitution.’”
IRB approval is meant to protect human subjects from harm, but Hamburger argues in two law review articles that the process can delay crucial medical discoveries. “It’s the most systematic and widespread violation of freedom of speech in the nation’s history,” he says.
Hamburger’s interest in IRBs also led to related research on the issue of unconstitutional conditions on speech—for instance, when the federal government requires radio and television broadcasters to avoid profanity as a condition to their use of public airwaves. In a recent article, he asserts that, although the federal government may impose conditions on the benefits it gives out, it cannot make an end run around constitutional limitations on its power, even when a beneficiary of government assistance has given consent. Churches and other charitable, educational, and religious organizations enjoy tax-exempt status on the condition of not engaging in overt political lobbying or campaigning. But, Hamburger argues, such an arrangement still constitutes censorship.
The relationship between religion and government happens to be another subject of profound interest to Hamburger. His 2002 book, Separation of Church and State, used painstaking historical research to argue that, contrary to the assumptions of most Americans, there is no language that enshrines “separation of church and state” in the Constitution. That contention raised a few eyebrows, which was just fine with Hamburger—who, in almost every case, refuses to join the political fray. When his Separation of Church and State book was published the same week that two high-profile court decisions on religion and the First Amendment had been decided, for example, he declined comment to The New York Times.
“I’m interested in intellectual debate—the principles,” Hamburger says. “Whether someone wins or loses on one thing or another matters less to me.”