Thomas Jefferson's Wall of SeparationDANIEL L. DREISBACH
Two hundred years ago this New Year's Day, Thomas Jefferson penned a letter to a Baptist association in Danbury, Connecticut in which he said the First Amendment built "a wall of separation between church and state."
In a carefully crafted missive, the president wrote:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.
Church-state controversies from school prayer to faith-based initiatives are among the most vexing and intractable of our age. And no metaphor in American letters has had a more profound influence on church-state law and policy than Jefferson's "wall of separation."
Although nowhere to be found in the U.S. Constitution, this trope is accepted by many Americans, including influential jurists, as a virtual rule of constitutional law and the organizing theme of church-state jurisprudence. "In the words of Jefferson," the Supreme Court famously declared in 1947, the First Amendment "erect[ed] 'a wall of separation' . . . [that] must be kept high and impregnable. We could not approve the slightest breach." The metaphor, in our time, has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity.
Building a Wall
Jefferson was inaugurated the third president on March 4, 1801, following one of the most bitterly contested elections in history. His religion, or the alleged lack thereof, was a critical issue in the campaign. His Federalist party opponents, led by John Adams, vilified him as an "infidel" and "atheist." The campaign rhetoric was so vitriolic that, when news of Jefferson's election swept across the country, housewives in New England were seen burying family Bibles in their gardens or hiding them in wells because they fully expected the Holy Scriptures to be confiscated and burned by the new administration in Washington. (These fears resonated with Americans who had received alarming reports of the French Revolution, which Jefferson was said to support, and the widespread desecration of religious sanctuaries and symbols in France.)
One pocket of support for the Jeffersonian Republicans in Federalist New England existed among the Baptists. The Danbury Baptist Association wrote to Jefferson on October 7, 1801, congratulating him on his election to the "chief Magistracy in the United States." They celebrated Jefferson's zealous advocacy for religious liberty and chastised those who had criticized him "as an enemy of religion[,] Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ."
The Danbury Baptists were outsiders a beleaguered religious and political minority in a state where a Congregationalist-Federalist establishment dominated public life. (The Congregationalist Church was still legally established in Connecticut.) They were drawn to Jefferson's political cause because of his unflagging commitment to religious liberty.
Jefferson's missive was written to reassure pious Baptist constituents of his continuing commitment to their rights of conscience and to strike back at the Federalist-Congregationalist establishment in Connecticut for shamelessly vilifying him in the recent campaign.
What the Wall Separates
Jefferson's "wall," according to conventional wisdom, represents a universal principle on the prudential and constitutional relationship between religion and the civil state. To the contrary, this "wall" had less to do with the separation between religion and all civil government than with the separation between federal and state governments on matters pertaining to religion. The "wall of separation" was a metaphoric construction of the First Amendment to the U.S. Constitution, which Jefferson time and again said imposed its restrictions on the federal government only (see, for example, Jefferson's 1798 draft of the Kentucky Resolutions). In other words, the "wall" Jefferson constructed separated the federal regime on one side and state governments and churches on the other.
Jefferson said that his reply to the Danbury Baptists "furnishes an occasion too, which I have long wished to find, of saying why I do not proclaim fastings & thanksgivings, as my predecessors [Presidents Washington and Adams] did." The president was eager to address this topic because his Federalist foes had demanded religious proclamations and then smeared him as an enemy of religion when he declined to issue them.
President Jefferson's refusal to set aside days in the public calendar for national fasting and thanksgiving contrasted with his actions in Virginia where he framed "A Bill for Appointing Days of Public Fasting and Thanksgiving," and, as governor in 1779, he designated a day for "publick and solemn thanksgiving and prayer to Almighty God."
How can Jefferson's public record on religious proclamations in Virginia be reconciled with the stance he took as president of the United States? The answer is found in the principle of federalism. Jefferson firmly believed that the First Amendment, with its metaphoric "wall of separation," prohibited religious establishments by the federal government only.
Addressing this same topic, Jefferson elsewhere relied on the Tenth Amendment, arguing that because "no power to prescribe any religious exercise . . . has been delegated to the [federal] government, it must then rest with the states, as far as it can be in any human authority." (He also affirmed this principle in his second inaugural address in March 1805.)
Thus, as a matter of federalism, he thought it inappropriate for the nation's chief executive to proclaim days for religious observance; however, he acknowledged the authority of state officials to issue religious proclamations.
A Controversial Metaphor
After two centuries, Jefferson's trope remains controversial. The question bitterly debated is whether the "wall" illuminates or obfuscates the constitutional principles it metaphorically represents.
Proponents argue that the "wall of separation" promotes private, voluntary religion and freedom of conscience in a secular polity. The metaphor graphically and concisely conveys the essence of the First Amendment, defenders say. It prevents religious establishments, discourages corrupting entanglements between governmental and ecclesiastical authorities, and avoids sectarian conflict among denominations competing for government favor and aid. An impenetrable barrier prohibits not only the establishment of one particular church (or denomination) but also all other forms of government assistance for religious objectives.
Opponents counter that the graphic metaphor has been a source of much mischief because it reconceptualizes indeed misconceptualizes First Amendment principles. The First Amendment explicitly denies Congress the authority to make laws respecting an establishment of religion, whereas a "wall of separation" restricts the activities of religion, as well as the civil state. Jefferson's trope emphasizes the separation between church and state, unlike the First Amendment, which speaks in terms of the nonestablishment and free exercise of religion. (In the lexicon of 1802, the expansive concept of "separation" was distinct from the institutional concept of "nonestablishment.") Jefferson's Baptist correspondents, who agitated for disestablishment and liberty of conscience but not for separation, were apparently discomfited by the figurative phrase. They were alarmed by the erection of a "wall" that would separate religious influences from public life and policy. Few evangelical dissenters (and that included Baptists) challenged the widespread assumption of the age that republican government and civic virtue were dependant on a moral people and that morals could be nurtured only by the Christian religion.
The very nature of a wall further reconceptualizes First Amendment principles. A wall is a bilateral barrier that inhibits the activities of both the civil state and religion, unlike the First Amendment, which imposes restrictions on the civil state only. In short, a wall not only prevents the civil state from intruding on the religious domain but also prohibits religion from influencing the conduct of civil government. The various First Amendment guarantees, however, were entirely a check or restraint on civil government, specifically Congress. The free press guarantee, for example, was not written to protect the civil state from the press, rather it was designed to protect a free and independent press from control by the federal government. Similarly, the religion provisions were added to the Constitution to protect religion and religious institutions from interference by the federal government and not to protect the civil state from the influence of, or overreaching by, religion. In other words, the First Amendment prohibition on religious establishment was a clear restraint on the power of civil government (i.e., the federal government) to give legal preference to any church or to invade the religious domain. A "wall," however, is a bilateral barrier that unavoidably restricts religion's ability to influence public life, thus it necessarily and dangerously exceeds the limitations imposed by the First Amendment.
Critics fear a "wall" separates religion from public life, thereby promoting a religion that is strictly private and a state that is strictly secular. Today, the "wall" is the cherished icon of a strict separationist dogma intolerant of religious influences in public life. It has figured prominently in numerous judicial decisions addressing the most divisive church-state disputes of our generation. Federal and state courts have used the "wall of separation" concept to justify censoring private religious expression (such as Christmas creches) in public fora, stripping public spaces of religious symbols (such as crosses), denying public benefits (such as education vouchers) for religious entities, and excluding religious citizens and organizations (such as faith-based social welfare agencies) from full participation in civic life on the same terms as their secular counterparts. The systematic and coercive removal of religion from public life not only is at war with our cultural traditions insofar as it evinces a callous indifference toward religion but also offends basic notions of freedom of religious exercise, expression, and association in a democratic and pluralistic society.
The "high and impregnable" wall constructed by the modern Supreme Court inhibits religion's ability to inform the public ethic and policy, deprives religious citizens of the civil liberty to participate in politics armed with ideas informed by their spiritual values, and infringes the right of religious communities and institutions to extend their prophetic ministries into the public square. This "wall," critics say, has been used to silence the religious voice in the marketplace of ideas and, in a form of religious apartheid, to segregate faith communities behind a restrictive barrier.
A Legacy of Intolerance
We must confront the uncomfortable fact that for much of American history the phrase "separation of church and state" and its attendant metaphoric formulation, "a wall of separation," have often been expressions of exclusion, intolerance, and bigotry. These phrases have been used to silence people and communities of faith and to exclude them from full participation in public life.
In the late eighteenth and early nineteenth centuries, establishmentarians sought to frighten Americans by deliberately mischaracterizing the religious dissenters' aspirations for disestablishment and liberty of conscience as advocacy for a separation of religion from public life that would inevitably lead to political atheism and rampant licentiousness. This was a political smear. Religious dissenters, indeed, agitated for disestablishment, but, like most Americans, they did not wish to separate religious values from public life and policy.
In the bitter presidential campaign of 1800, Jeffersonian Republicans cynically advocated the rhetoric and policy of separation, not to promote religious worship and expression, but to silence the Federalist clergy who had vigorously denounced Jefferson as an infidel and atheist. (Two centuries later, the American Civil Liberties Union and its allies continue to use these phrases to silence people and communities of faith that seek to participate in the public marketplace of ideas armed with ideas informed by spiritual values.)
Not surprisingly, this separationist rhetoric returned to fashion in the 1830s and 1840s and, again, in the last quarter of the nineteenth century when waves of Catholic immigrants, with their peculiar liturgy and resistance to assimilation into the Protestant establishment, arrived on American shores. Nativist elements, including the Know Nothings and later the Ku Klux Klan, embraced separationist rhetoric and principles in a continuing, and often violent, campaign to restrict the role of Catholics in public life.
Again, in the mid-twentieth century, the rhetoric of separation was revived and ultimately constitutionalized by anti-Catholic elites, such as John Dewey, Hugo Black, and their fellow-travelers in the American Civil Liberties Union and Protestants and Other Americans United for the Separation of Church and State, who feared the influence and wealth of the Catholic Church and perceived parochial education as a threat to public schools and democratic values.
In summary, the terms "separation of church and state" and "wall of separation," although not necessarily expressions of intolerance, in the American experience they have often been closely identified with the ugly impulses of nativism and bigotry. These phrases, in our cultural and political experience, have been so freighted with nativist and bigoted connotations that I believe we must reconsider the propriety of their continued use in legal and political discourse.
The repetitious, uncritical use of felicitous phrases, Justice Felix Frankfurter observed, bedevils the law: "A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." Figures of speech designed to simply and liberate thought end often by trivializing or enslaving it. Therefore, as Judge Benjamin N. Cardozo counseled, "[m]etaphors in law are to be narrowly watched." This is advice that courts would do well to heed.
An examination of Jefferson's celebrated wall, constructed two centuries ago this year, casts light not only on the past but also on the future place of religion in American public life. Today, the Supreme Court's vision of that wall stands as a defining image of the prudential and constitutional role of religion in the public arena. Serious consideration must be given to whether that wall accurately represents constitutional principles and usefully contributes to American democracy and to a civil society.
Religion and Political Culture in Jefferson's Virginia. Edited by Garrett Ward Sheldon and Daniel L. Dreisbach. Lanham, MD: Rowman and Littlefield Publishers, 2000.
Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate. Edited by Daniel L. Dreisbach. Lexington, KY: University Press of Kentucky, 1996.
Daniel L. Dreisbach. "Thomas Jefferson's Wall of Separation: The Creation of a Metaphor and the Re-creation of Church-State Law, Policy, and Discourse."excerpted from Thomas Jefferson and the Wall of Separation Between Church and State (New York University Press, 2002).
Reprinted with permission of the author.
Ask for Thomas Jefferson and the Wall of Separation Between Church and State at your local bookstore, or call the publisher toll-free at 1-800-996-6987. Click here to order Thomas Jefferson and the Wall of Separation Between Church and State.
Daniel L. Dreisbach, D.Phil. (Oxford Univ.) and J.D. (Univ. of Virginia), is a Professor of Justice, Law and Society at American University in Washington, D.C.
Copyright © 2002 by Daniel L. Dreisbach. All rights reserved.
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