Monday, September 24, 2012

Dreisbach on "Thomas Jefferson and the Wall of Separation Between Church and State"

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 barrier.” (2)

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.


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