Thomas Jefferson and the Wall Of Separation: Metaphor,Article,/Issue/049/’Wall Of Separation’ Metaphor By Derek H. Davis_049_10_.htm

0 Comments

Thomas Jefferson and the "Wall Of Separation: Metaphor"
By Derek H. Davis, Director
J. M. Dawson Institute of Church-State Studies, Baylor University

Note: This article was originally published in the Journal of Church and State (Winter, 2003) and is reprinted by permission.

Increasingly the separation of church and state in America is maligned and belittled. Many commentators, authors, and political figures advance the theory that the separation doctrine is a myth, that there never have been any limitations on the forces of faith winning political power and directing the course of the nation`s destiny along religious lines. At a time when the 9/11/01 tragedy should alert all Americans to the dangers of the radical mix of politics and faith, the crusade to strengthen the formal bonds between church and state in the United States seems to be winning converts at an alarming rate.

One of the most popular strategies adopted by many anti-separationists is to discredit or redefine the meaning of the "wall of separation" metaphor made famous by President Thomas Jefferson in the early nineteenth century. Jefferson used the controversial metaphor in responding to the Danbury Baptist Association, a Baptist religious society in Connecticut that mailed a letter to him in 1801, congratulating him on his recent election to office and praising him for his views on religious liberty. While the letter from the Danbury Baptists has long since faded into oblivion, its response from Jefferson, written to describe his understanding of the meaning of the religion clauses of the First Amendment, has in many ways since become a pillar of American public policy regarding the relationship between church and state. Jefferson`s letter, dated January 1, 1802, contained this sentence:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach action only, and 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 and State.

In the 1947 case of Everson v. Board of Education, U.S. Supreme Court Justice Hugo Black retrieved Jefferson`s letter from relative obscurity, discovering in it a summation of the purpose of the Establishment Clause: "In the words of Jefferson, the clause against establishment was intended to erect a `wall of separation` between church and State." "That wall," he added, "must be kept high and impregnable." The case signaled the Supreme Court`s belief that the opening words of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .") requires nothing less than the separation of church and state. Indeed, most of the Supreme Court`s church-state decisions in the last fifty years, with occasional exceptions, have been grounded in a fundamental commitment to the Everson standard and the "wall of separation" approach. In recent decades, however, the separation principle has come under considerable attack by religious conservatives as well as many political figures, scholars, and judges. They seek to "set straight" the historical record in order to let the American people know that the Jeffersonian version of the separation of church and state is a myth, and that the Founding Fathers wanted the federal government to be influenced by religious, mostly Christian, ideals, the main limitation being that the government could not set up a national church. A major part of these critics` relentless strategy to discredit the principle of church-state separation is to trivialize Jefferson`s letter-to create the illusion that the letter was a hastily written thank-you note to the Danbury Baptist Association without any serious "separationist" overtones.

Religious Right author David Barton, for example, perhaps the most outspoken of the "wall of separation" critics, devoted an entire book, The Myth of Separation, to proving his claim that church-state separation is "absurd" and was a principle completely foreign to the Founding Fathers. In discussing Jefferson`s letter, he claims that Jefferson`s "wall of separation" was meant to be "one-directional," protecting only the church from interference by the state but never shielding the state from the influence of the church. He states: "In Jefferson`s full letter, he said separation of church and state means the government will not run the church, but we will use Christian principles with government." Focus on the Family president James Dobson makes basically the same claim: "The principle of separation of church and state is found only in one of Jefferson`s letters, and referred, not to the exclusion of religious people from government, but to the protection of religion from governmental interference." He adds that Jefferson`s letter "has been twisted in its meaning and given the weight of constitutional law."

Pat Robertson, presidential candidate in 1988 and founder of the Christian Coalition, calls Jefferson`s letter an "angry note" in which he "mentioned in passing that the First Amendment Establishment Clause had built a `wall of separation between church and state.`" The implication is that Jefferson was angry at the Founding Fathers for writing a First Amendment that separated church and state, something he could do little about since he was in France at the time the First Amendment was drafted, proposed, debated, and ratified (1789-91). Materials distributed by Robertson`s Christian Coalition make the identical claim. Many Coalition pamphlets flatly state that Jefferson said in his letter to the Danbury Baptists that the United States government should be based on Christian principles and that the wall of separation meant only that the government should not interfere with churches, and not the other way around.

Among more scholarly critics, Robert L. Cord, in his book, Separation of Church and State, calls the view of Justice Black-that "The First Amendment has erected a wall between church and state" and that it "must be kept high and impregnable"-mere "lines of fiction." Moreover, a figure no less than the Chief Justice of the United States Supreme Court, William A. Rehnquist, holds similar views. For Rehnquist, Black`s use of Jefferson`s metaphor is a serious distortion of the true purpose of the Founding Fathers. The "wall" is, says Rehnquist, a "faulty" premise upon which Everson and a host of succeeding cases have been wrongly decided. In his dissent in Wallace v. Jaffree, a 1985 case which disallowed a moment of silence for "prayer or meditation" in Alabama`s public schools, Rehnquist expressed his regret that the Establishment Clause had been "expressly freighted with Jefferson`s misleading metaphor for nearly forty years." Rehnquist argued for a purpose in the religion clauses "far different" from the highly simplified "wall of separation between church and state." The purpose of the Establishment Clause, he argued, was more limited than what the Supreme Court had traditionally held:

It forbade establishment of a national religion, and forbade preference among religious sects or denominations. . . . The Establishment Clause did not require government neutrality between religion nor did it prohibit the federal government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson.

Rehnquist then concluded: "The `wall of separation between church and state` is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."

More recently, two scholars have published books that criticize the almost canonical status the metaphor has achieved, especially before the U. S. Supreme Court. Along these lines, Daniel Dreisbach, in his book, Thomas Jefferson and the Wall of Separation between Church and State, is critical of the judiciary for making the metaphor a virtual rule of constitutional law. Dreisbach`s basic argument is that the metaphor fails to distinguish between the concepts of "separation" and "nonestablishment." By this, he means that Jefferson, in adopting the metaphor, intentionally reconceptualized the meaning of the Establishment Clause, which supposedly only prohibits a national church and the federal government from preferring some religions over others (nonpreferentialism) while not imposing any restraints on religion`s ability to influence civil matters. Jefferson`s "reconceptualization" was to place a "wall" between the federal government and religion so that the interferences or influences that either might impose on the other are limited. Dreisbach, while not labeling it as such, is making here the "one-directional wall" argument, which holds that Congress intended to limit government`s involvement in religion but not religion`s involvement in government. The problem with this argument is that the Founding Fathers` intent on this issue is fraught with ambiguities. Jefferson was clearly siding with a large body of founding era leaders who understood "nonestablishment" in much broader terms than nonpreferentialism. They understood the Establishment Clause in more "separationist" terms, imposing limits on governmental interference with religion as well as limiting religion`s ability to direct the course of governmental matters. This ambiguity is reflected even in the eleven drafts of the religion clauses that were considered by the First Congress; these drafts are roughly equally divided between language that adopts nonpreferentialism on the one hand and separationism on the other. The final wording is arguably a compromise between the two.

Dreisbach is surely correct in saying that metaphors can be overstated, misused, and made poor substitutes for legal principle. But metaphors are powerful language and will always capture the hearts and imaginations of human beings, even Supreme Court justices. But it works both ways. I would argue that a near majority of the current Supreme Court justices have rejected the "wall" metaphor and are now unwittingly at work to adopt a new metaphor-"equal treatment"-which enshrines nonpreferentialism, permits a host of religious activities in the public realm in the name of "free exercise," and effectively displaces most of what Dreisbach laments.

Philip Hamburger, in his book, Separation of Church and State, deals not strictly with Jefferson`s metaphor, but the use of the term "separation" in the history of American political discourse. He contends that separation was not a part of the intent of the Founding Fathers and was only popularized in the nineteenth century as a part of nativist, anti-Catholic bigotry and during the twentieth century as a tool of secularists who sought to eliminate religion from public life. Like Dreisbach, he is critical of what he perceives to be the gradual development of a gross misunderstanding of Jefferson`s metaphor, caused mainly by a gullible judiciary.

What should we make of this barrage of criticism? Could Barton, Dobson, Robertson, Cord, Rehnquist, Dreisbach, and Hamburger be right about the Supreme Court badly bungling the meaning of Jefferson`s letter to the Danbury Baptist Association? Were Jefferson`s views on the separation of church and state far less stringent, considerably less separationist, than the Supreme Court thought (unanimously) in Everson? These critics have good reason to attack Jefferson`s letter, of course. Destroy Jefferson as a strong separationist, and destroy in the process a major plank in the foundation upon which the Everson Court relied in articulating the view that the First Amendment has erected a "high and impregnable" wall between church and state. With that step achieved, the door would be opened wide for a closer union of church and state in America, a union that would allow for prayer and other religious activities in the public schools; government financial aid to churches, religious schools, and other religious organizations; and the placement of crosses and other religious symbols on public property. In short, government restraints on sponsorship and support of religion and religious institutions would be removed. There is indeed much at stake.

Let us take a closer look at Jefferson`s letter to the Danbury Baptists and the context in which it was written. When examined in its proper light, it is readily seen that its anti-separationist critics offer strained, if not outright false, interpretations of Jefferson`s letter. The letter was actually a carefully crafted document which Jefferson hoped would become a widely distributed statement regarding his view of the purpose of the First Amendment`s religion clauses.

It is important first to understand the context in which the letter from the Danbury Baptist Association was written. Why did the Danbury Baptists write a letter to Jefferson and what did it say? The letter was written in connection with what became known as the Baptist Petition Movement in Connecticut. This movement, which began in 1800 and lasted about fifteen years, was an organized effort by Connecticut Baptist leaders to arouse the conscience of the Congregational majority in Connecticut to end its status as the state`s official religion, with all of its attendant privileges. These efforts, as well as those of other minority faith groups, ultimately proved to be successful when in 1817, the Connecticut legislature disestablished the Congregational Church. But as the nineteenth century opened, Baptists, due to their rapidly increasing numbers, were only beginning to wage their campaign to end all Congregational privileges. The main Congregational advantage they wished to end was the receipt of a special religious tax paid by all Connecticut citizens. Baptists could route their tax to their own Baptist church, but they first had to obtain, fill out, and properly file an exemption certificate. As Baptists were a harassed minority, some communities made it difficult for them to receive these exemptions. Many Baptists, therefore, chose to stay at home rather than endure the paperwork hassle. But on a larger scale, it was the inequality of being required to file for exemption at all-a policy of discrimination, they argued-that justified an end to the Congregational establishment. Why not make religion self-sustaining, they contended, since all religions would fare better if they were voluntarily supported by their membership and did not receive government dollars. One Baptist petition in 1803 stated the argument this way: "That all mankind are entitled to equal rights and privileges, esp., the rights of conscience . . . and that all human laws which obliged a man to worship in any lawfully prescribed mode, time, or place or which compel him to pay taxes or in any way to assist in the support of a religious teacher unless on his voluntary contract, are unjust and oppressive."

The Danbury Baptist Association, a leader in the Baptist Petition Movement, thought it would be a good idea to develop friendly relations with the new Republican president, Thomas Jefferson. The president was, of course, well known for his unorthodox religious opinions as well as for his liberal views on religious liberty and the separation of church and state. That Jefferson had helped to separate church and state in Virginia had been considered a prime argument either for or against his election. He was not popular with the Federalist majority in Connecticut, witness what one journalist wrote in the Connecticut Covenant on September 18, 1800: "Consider the effects which the election of any man avowing the principles of Mr. Jefferson would have upon our citizens. The effects would be to destroy religion, introduce immorality, and loosen all the bonds of society." Already anticipating that convincing the Federalist majority in Connecticut to remove the state`s establishment laws might fail, the Danbury Association opined that the only possibility of eventually achieving their goal might be to side with the Jeffersonians to eventually drive the Federalists out of power. The Danbury Baptists` letter to Jefferson was written in this spirit; it was a gracious statement of appreciation for like mindedness on a burning issue, but it was also a well planned act of political strategy.

What did the letter say? Following appropriate salutations to the president, the Baptists offered this statement of their belief concerning religious liberty:

Our sentiments are uniformly on the side of religious liberty-That religion is at all times and places a matter between God and individuals-That no man ought to suffer in name, person, or effects on account of his religious opinions-That the legitimate power of civil government extends no further than to punish the man who works ill to his neighbour.

The Baptists went on to voice their disagreement with the state of affairs in Connecticut-that a Congregational establishment meant that "what religious privileges we enjoy . . . we enjoy as favors granted and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen." They then expressed the hope that the very presence of Jefferson in the White House might have a positive effect toward a change of the law in their state:

Sir, we are sensible that . . . the national government cannot destroy the laws of each state; but our hopes are strong, that the sentiments of our beloved President which have had such genial effect already, like the radiant beams of the sun, will shine and prevail thro` all these states and all the world, till Hierarchy and tyranny be destroyed from the earth.

These statements make it clear that the Danbury Baptists thought they had in Jefferson a cohort, one whose views on religious liberty paralleled their own. They saw in Jefferson one who opposed governments being founded upon religion, opposed the advancement by law of one form of Christianity, and opposed government granting privileges to some but not others based on religious identification.

Jefferson`s written response was not requested or expected; that it arrived a little more than two months later was likely a surprise to the Danbury Baptists. And Jefferson probably would not have written the letter had he disagreed with the views of the Danbury Baptists. He wrote the letter specifically to offer his views on the meaning of the religion clauses, pleased that he had an appreciative audience. Contrary to what Pat Robertson would have us believe, he was not "angry" about the separation principle enshrined in the religion clauses; he wrote rather to advocate such a position. And had Jefferson believed in a "one-directional" wall, one only protecting religion from government and not government from religion, as critics claim, he would hardly have written a letter stating his agreement with the Baptist`s view on religious liberty, since the raison d`être of the Danbury Baptist Association was its vigorous opposition to religion (Congregationalism) directing the course of state affairs in Connecticut.

As already noted, many anti-separationists assert that Jefferson`s letter was issued hastily, mostly out of politeness, with little attention to substance, and certainly not to express strong separationist sentiments. The facts, however, quickly dispel this interpretation. The evidence suggests that Jefferson took extreme care to craft his reply. After preparing the letter, Jefferson asked his attorney general, Levi Lincoln, to carefully review it. In an attached note to Lincoln, Jefferson wrote,

"Averse to receive addresses (letters), yet unable to prevent them, I have generally endeavored to . . . [make] them the occasion, by way of answer, of sowing useful truths and principles among the people, which might germinate and become rooted among their political tenets. . . . The Baptist address . . . furnished an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did."

There are other indications that Jefferson gave close attention to the wording of his letter. Jefferson wanted to use the letter to explain his opposition to proclaiming national days of fasting and thanksgiving. His attorney general, however, persuaded him to say nothing about the subject. Jefferson`s original draft contained this sentence: "Congress thus inhibited from acts respecting religion, and the Executive authorized only to execute their acts, I have refrained from prescribing even occasional performances of devotion." Attorney General Lincoln, persuaded that the sentence would hurt the president politically in New England, advised Jefferson to remove it. Jefferson agreed, but noted in the margin of his draft, "This paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings etc. by their Executive is . . . [a] habit and is respected."

These facts plainly indicate the considerable precision exercised by Jefferson in framing his reply. Moreover, the length of the letter (three paragraphs, 259 words) also defies that it was a mere gesture of good will. The letter was carefully drawn, and intended to be a policy statement, a status which it undoubtedly has achieved in our own time.

The charge that Jefferson`s "wall of separation between church and state" was one-directional only, that is, that the "wall" was to protect the church from government but not the government from the church, is insupportable not only on the basis of what the Danbury letter actually says, but also on the basis of Jefferson`s views on church-state relations as developed and expounded over the course of his political career. Jefferson was a thoroughgoing separationist, perhaps surpassed only by his close friend and fellow Virginian, James Madison. Jefferson was the author of Virginia`s Statute for Religious Freedom, enacted into law in 1786 after seven years of protracted debate among Virginia legislators. The statute ended once and for all the practice of state-supported religion in Virginia. The "one-directional" wall theory precludes a ban on government subsidization of religion, which is what the Virginia Statute undoubtedly achieved. Jefferson was undoubtedly "two-directional" in his view that government should have no role in advancing or promoting religious ideas. In his words, "truth is great and will prevail if left to herself." Moreover, "the opinions of men are not the object of civil government, nor under its jurisdiction." These statements were made in 1779, twenty-three years before he wrote the letter to the Danbury Baptist Association, but his views did not change once in office. Contrary to his predecessors, George Washington and John Adams, he opposed presidential proclamations for prayer, fasting, and thanksgiving. On the matter of official prayers, he believed that it was best left in the hands of the people, "where the Constitution had deposited it."

III

As strong a separationist as Jefferson was, he occasionally lowered the "wall" if there were extenuating circumstances. For example, he approved treaties with Indian tribes that underwrote the "propagation of the Gospel among the Heathen." In all probability, however, he justified this action on the view that Indian tribes were foreign nations, and the First Amendment was therefore inapplicable. As we examine Jefferson`s full record, it is apparent that he believed that religion and government both benefit if they maintain a healthy distance from each other. He believed that religion almost always exists in greater purity without the support of government, that only voluntary faith is authentic, and that government nurture destroys true religion.

Most critics of the separation of church and state fail to acknowledge that the "wall of separation" metaphor did not actually originate with Thomas Jefferson. It was first used in America by America`s earliest and most ardent advocate of the separation of church and state, Roger Williams. In 1644, responding to a critic`s charges concerning his views, Williams wrote that the Bible taught there to be "hedge or wall of separation between the garden of the church and the wilderness of the world." Williams, like Jefferson later, believed that a clear boundary between the institutions of government and religion is good for both. The Supreme Court, then, in unanimously embracing the "wall of separation" metaphor in the 1947 Everson case, was not only saluting the views of Thomas Jefferson regarding the separation of church and state, but was actually affirming a notion that had been a bedrock principle in American thought for more than three hundred years. The Court, in fact, later bracketed Williams and Jefferson with Madison as the figures whose views were most reflected in the First Amendment: The "belief in liberty of religious opinion" espoused by Williams, Jefferson, and Madison, wrote Justice Tom Clark in Abington v. Schempp (1963), "came to be incorporated in the Federal Constitution."

The meaning of the religion clauses should not, of course, be determined by resorting exclusively to the views of Thomas Jefferson, or even the views of Jefferson as supplemented by Williams and Madison. There were a variety of views in early America regarding the principles that should govern the relationship between religion and government, just as there is a wide range of views today. We should always give close attention to the original intentions of America`s earliest thinkers, but we should not approach their intent as being so fixed as to prevent some measure of freedom to later constitutional interpreters. Nevertheless, to the extent that we rely on founders such as Thomas Jefferson to determine the meaning of the religion clauses, it is important that we examine their writings in their proper historical context, free from reckless distortions intended to advance a partisan view. A fair examination of Thomas Jefferson`s 1802 letter to the Danbury Baptist Association clearly shows that Jefferson understood the religion clauses to mitigate against religious institutions being government`s guiding force or the beneficiaries of government benefits. His "wall of separation between church and state" would be a permanent barrier to such practices.