Defining the 'Wall'
Courts' use of 'wall of separation' metaphor all wrong. History proves it, says First Amendment expert.
by Pat Centner
Thomas Jefferson was a brilliant and prolific writer who waxed eloquent on hundreds of subjects during the years he served as a Virginia statesman and, later, president of the United States. Author of the Virginia Statute for Establishing Religious Freedom, Jefferson's strongly-held convictions on the subject of religious liberty were often misunderstood.
Yet, with all his discourse on the subject, only one time in any of his writings or speeches did Jefferson ever mention the now famous metaphor, "wall of separation between church and state."
Remarkably, this phrase has, in the minds of many, replaced the actual text of the Constitution's First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
But contrary to popular belief, the metaphor is not included in the First Amendment. Indeed, it appears nowhere in the Constitution. Yet these seven words have had a more profound effect on church-state law and policy than possibly any others penned in American history.
In his book, Thomas Jefferson and the Wall of Separation Between Church and State (New York University Press, 2002), Daniel L. Dreisbach carefully explores the history of the metaphor, its controversial uses and competing interpretations. The book also focuses on a 1947 Supreme Court decision that Dreisbach contends resulted in today's courts using the phrase to essentially remove from America's public square anything that vaguely resembles "religion."
Dreisbach, a professor at American University in Washington, D.C., holds a Doctor of Philosophy degree and a Juris Doctorate. He has studied the subject of separation between church and state for nearly 20 years. His knowledge and attentiveness to accuracy are apparent as he references literally hundreds of books and writings in his book's bibliography. Dreisbach says he penned his book because little has been written that examines the historical and political context in which Jefferson used the wall metaphor.
Dreisbach's book explores in rich detail Jefferson's letter to the Danbury Baptist Association of Connecticut, which contains his only reference to the wall. It also compiles and reproduces, for the first time, correspondence between Jefferson and the Danbury Baptists, as well as discourses he held with his cabinet members.
So what was behind it all? Following is a synopsis gleaned from Dreisbach's book, as well as other insights he provided in an e-mail interview with AFA Journal.
In 1800, Republican Thomas Jefferson defeated Federalist John Adams in one of the most bitterly contested presidential elections in American history. The Federalists fiercely attacked Jefferson, questioning his religious beliefs and calling him an "infidel" and an "atheist." Some folks were so convinced of his heathenism that they buried family Bibles, fearing that Jefferson would confiscate and burn them when he became president. This distrust of Jefferson had been brewing for nearly 20 years, even though he had written several works in support of religious freedom.
There were many, though, who were devoted to Jefferson. Among these were the fiercely loyal Republicans of the Danbury Baptist Association. They had written the president a somewhat belated letter, congratulating him on his election to office and applauding his lifelong devotion to religious liberty. On New Year's Day, 1802, Jefferson replied to this group.
"Because Jefferson's foes had vilified him as an infidel, he hoped this letter would reassure the pious Baptists that he was a friend of religion and an advocate of religious liberty," Dreisbach explains. "Jefferson also wanted to use the letter as a vehicle to explain his views on a politically divisive issue -- why he, as president, had declined to proclaim days for public thanksgiving and prayer, as Presidents Washington and Adams had done before him."
In his letter, Jefferson endorsed the Danbury Baptists' desire for religious freedom. Declaring that religion is a matter between a man and his God, and that the powers of government reach actions and not opinions, Jefferson affirmed his reverence for the First Amendment. He noted that its Establishment and Free Exercise Clauses denied Congress (the national legislature) the authority to establish a religion or to dictate one's religious beliefs, "thus building a wall of separation between Church and State."
"One of the things Jefferson wanted to address," says Dreisbach, "was the question of the relationship between the national government and state governments on matters pertaining to religion. The constitutional framers wanted to avoid the creation of a national church like that which existed in England."
Thus, in 1802, and indeed, for the first 150 years of American history under the U.S. Constitution, laws prohibiting an establishment of religion applied only to the national government. State governments could maintain religious establishments if they so chose. The word "respecting" in the First Amendment confirms that Congress could neither establish a national church, nor disestablish existing state religious establishments.
So, in essence, what Jefferson was telling the Danbury Baptists was that he, as president of the national government, had no authority to proclaim a religious holiday because that authority belonged to the individual states.
The Wall Today
Dreisbach's book points out that following this one letter, Jefferson's metaphor slipped into obscurity in both public and private papers. It was not until 1947 that it was rediscovered by Justice Hugo L. Black in a Supreme Court case, Everson v. Board of Education. In that decision, which concerned the use of state funds to transport children to religious schools, Justice Black cited the "wall of separation," and characterized it as "high and impregnable."
"Black's wall differs from Jefferson's wall," says Dreisbach. "Jefferson's wall explicitly separated the institutions of church and state, while Black's wall separates religion and all civil government. Moreover, Jefferson's wall separated church and the national government only."
By incorporating the First Amendment non-establishment provision into the due process clause of the Fourteenth Amendment, Black's wall separates religion and civil government at all levels -- national, state and local. This interpretation of the wall created an instrument of the federal judiciary to invalidate policies and programs of state and local authorities, Dreisbach adds.
When asked to comment on the book's "bottom line" and the ramifications of Justice Black's 1947 interpretation of the wall, Dreisbach responded thus:
"The wall metaphor mischievously redefines constitutional principles in at least two important ways:
"First, the phrase emphasizes separation between church and state -- unlike the First Amendment, which speaks in terms of the non-establishment and free exercise of religion.
Second, a wall is a bilateral barrier that inhibits the activities of both the civil government and religion -- unlike the First Amendment, which imposes restrictions on the civil government only (specifically on Congress). Therefore, the wall unavoidably restricts religion's ability to influence public life, thus dangerously exceeding the limitations imposed by the Constitution.
"Today, the wall is used to separate religion from public life," continues Dreisbach, "thereby promoting a religion that is essentially private and a state that is strictly secular.
"The 'high and impregnable wall' constructed by the modern Supreme Court inhibits religion's ability to inform the public ethic, 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 ministries into the public square. The wall has been used to silence the religious voice in the public marketplace of ideas and to segregate people of faith behind a restrictive barrier."
Steps to Take
On a personal note, Dreisbach suggested several actions Christians should take to counteract the misinterpretation of the First Amendment:
1. Read American history and study our Constitution. Too many Christians blindly accept the Court's wall metaphor as the text of the First Amendment.
2. Become engaged in public life; pray for our country and its leaders. Participate in public debates about the laws and policies of the land. Register, vote, and encourage like-minded citizens to do likewise.
3. Let public officials know where you stand and lobby for their support for important issues. Run for public office or otherwise serve in civic affairs.
4. Recognize the influential role played by judges in our system. Urge the appointment of judges who will faithfully interpret the Constitution and not rewrite it to serve their own interests. Encourage judges to return to the text of the First Amendment rather than rely on a metaphor not found in the Constitution.
5. Support the lawyers bringing cases before courts in order to defend important rights under the Constitution.
Add to these suggestions, "Read Dreisbach's book." With its careful, balanced examination of every nuance surrounding Thomas Jefferson's usage of the "wall of separation between church and state," this book is invaluable in helping one to formulate an informed and intelligent understanding of the subject. It is a must-read for those who oppose the removal of all things religious from the public marketplace of ideas.
Reprinted by permission, AFA Journal.