Thomas Jefferson and
the Wall of Separation Between Church and State, written by Daniel Dreisbach,
professor at American
University. (I heard Dreisbach speak on "the vine and the fig tree"; good stuff!)
The 1st Amendment of the U.S. Constitution: "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof ...."
The first reference to “the wall [of separation between
church and state]” by the SCOTUS shows up nearly 100 years later—through Chief
Justice Morrison Waite in Reynolds vs.
U.S. (1879): Jefferson's reply to the
Danbury Baptists "may be accepted almost as an authoritative declaration
of the scope and effect of the [First] Amendment.”
The SCOTUS “rediscovered” the phrase through Justice Hugo
Black’s use of it in Everson v. Board of
Education (1947): "In the words of Thomas Jefferson, the clause
against establishment of religion by law was intended to erect a wall of
separation between church and state…That wall must be kept high and
impregnable. We could not approve the slightest breach."
Dreisbach opens by observing that “The pervasive influence
of the ‘wall’ in law, policy and discourse raises some important questions” (5)—most
notably, is the wall metaphor accurate to the 1st Amendment and is
the contemporary use of “the wall” faithful to Jefferson’s
meaning (to the extent this matters)? Similar questions arise later (55): “What
does ‘the wall’ separate? What is meant by ‘church’? What is meant by ‘state’?
Does ‘state’ include civil government in all its forms?”
Dreisbach notes that “The Amendment differs in significant
respects from Jefferson’s felicitous phrase…imposes
explicit restrictions on Congress only. A wall, by contrast, is a bilateral
Moreover, Dreisbach argues from the context that Jefferson was speaking of the federal government—and the
President not asserting powers not afforded to him or the Congress, through the
Constitution (66). “In short, the wall Jefferson erected in the Danbury letter was between the federal government on the
one side and church authorities and state government on the other…Accordingly, Jefferson saw no contradiction in authoring a religious proclamation
as a state official and refusing to issue a similar proclamation as the federal
chief executive.” (68) [See also: any policy differences between execution at the
state and federal levels—most notably, these days, as seen with health care “reform”.
It’s amazing that smart people can’t draw this distinction!]
As Dreisbach concludes: “This controverts the conventional
notion that Jefferson’s metaphor encapsulated
a general constitutional, prudential, and libertarian doctrine of church-state
relationships and religious liberty.” (69) One other irony I caught: people who
are fond of a larger version of ‘the wall’ here aren’t nearly as fond of the clear
wall erected by the 10th Amendment.
Dreisbach opens chapter 7 on the use of the wall in
discourse—with a wonderful quote from Judge Benjamin Cardozo in a 1926 court
case: “Metaphors in law are to be narrowly watched, for starting as devices to
liberate thought, they end often by enslaving it.” From there, he traces the
evolution of thought on—and use of—the wall.
In terms of substance, Dreisbach (25) also provides context
for the exchange of the six letters (all of which he reproduces), including the
idea that private letters often became (very) public communication (27). Chapter
5 lays out pre-Jeffersonian references to the wall, including the probable
source(s) for Jefferson’s use of the phrase. And
chapter 6 lists other wall-like references from earlier writers and Jefferson’s contemporaries. These two chapters were both
unexpected and really interesting.
For those who have eyes to see and ears to hear, Dreisbach’s
work is accessible and useful for discerning what was meant by the Constitution
and by Jefferson in his famous phrase.
Unfortunately, fundamentalists (esp. those who agree with Hugo Black’s take) on
both sides are the least likely to read a work like this.