Dreisbach – How Thomas Jefferson’s “Wall of Separation” Redefined Church-State Law and Policy

How
Thomas Jefferson’s “Wall of Separation” Redefined Church-State Law and
Policy

The
Philadelphia Society Regional Meeting
Williamsburg, Virginia, October 4, 2003

Daniel
L. Dreisbach

No metaphor in American letters has had a greater influence on law and
policy than Thomas Jefferson’s “wall of separation between church and
state.” Many Americans accept it
as a pithy description of the constitutionally prescribed church-state
arrangement, and it has become the locus classicus of the notion that the
First Amendment to the United States Constitution separated religion and the
civil state, thereby mandating a strictly secular polity.

More important, the judiciary has embraced this figurative phrase as a
virtual rule of constitutional law and as the organizing theme of church-state
jurisprudence, even though the metaphor is not found in the Constitution.
Writing for the United States Supreme Court in 1948, Justice Hugo L.
Black asserted that the justices had “agreed that the First Amendment’s
language, properly interpreted, had erected a wall of separation between Church
and State.” Our democracy is
threatened, Justice John Paul Stevens warned recently, “[w]henever we remove a
brick from the wall that was designed to separate religion and government.”

What is the source of this figure of speech, and how has this symbol of
strict separation between religion and public life become so influential in
American legal and political thought? Most
important, what are the consequences of its ascendancy in church-state law and
policy? I address these questions
in my new book, Thomas Jefferson and the Wall of Separation Between Church
and State (2002).

The Wall that
Jefferson Built

On New Year’s Day, 1802, President Jefferson penned a missive to the
Baptist Association of Danbury, Connecticut.
The Baptists had written the new president a “fan” letter in October
1801, congratulating him on his election to the “chief Magistracy in the
United States.” They celebrated
his 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.”

In 1800, Jefferson’s Federalist party opponents, led by John Adams,
dominated New England politics, and the Congregationalist Church was still
legally established in Connecticut. The
Danbury Baptists were outsiders‑‑a beleaguered religious and
political minority in a state where a Congregationalist‑Federalist
establishment dominated public life. They
were drawn to Jefferson’s political cause because of his unflagging commitment
to religious liberty.

In a carefully crafted reply, endorsing the persecuted Baptists’
aspirations for religious liberty, 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.

Jefferson allied
himself with the New England Baptists in their struggle to enjoy the rights of
conscience as an inalienable right and not merely as a favor granted, and
subject to withdrawal, by the civil state.

The missive was written in the wake of the bitter presidential contest of
1800.
Candidate Jefferson’s religion, or the alleged lack
thereof, was a critical issue in the campaign.
His Federalist foes vilified him as an “infidel” and an
“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 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.)
The Danbury letter was written to reassure pious Baptist constituents of
Jefferson’s 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.

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 the national and state
governments on matters pertaining to religion (such as official proclamations
for days of prayer, fasting, and thanksgiving).
The “wall of separation” was a metaphoric construction of the First
Amendment, which Jefferson time and again said imposed its restrictions on the
national government only (see, for example, Jefferson’s 1798 draft of the
Kentucky Resolutions). In other
words, Jefferson’s wall separated the national regime on one side from state
governments and religious authorities on the other.

How did this wall, limited in its jurisdictional application, come to
exert such enormous influence on American jurisprudence?
The political principle of separation between religion and politics began
to gain currency among Jeffersonian partisans in the campaign of 1800, not to
promote liberty, but to silence the Federalist clergy who had denounced
candidate Jefferson as an infidel and atheist.
In the Danbury letter, with its metaphoric formulation, Jefferson deftly
transformed the political principle into the constitutional principle of
separation between church and state by equating the language of separation with
the text of the First Amendment. The
constitutional principle was eventually elevated to constitutional law by the
Supreme Court in the mid-twentieth century, effectively re-creating First
Amendment doctrine.

A remarkable aspect of the story of Jefferson’s metaphor is its rescue
from obscurity and entrance into public discourse.

The Metaphor
Enters Public Discourse

By late January 1802, printed copies of Jefferson’s reply to the
Danbury Baptists began appearing in New England newspapers.
The letter, however, was not accessible to a wide audience until it was
reprinted in the first major collection of Jefferson’s papers, published in
the mid-nineteenth-century.

The phrase “wall of separation” entered the lexicon of American
constitutional law in the U.S. Supreme Court’s 1879 ruling in Reynolds v.
United States.
Opining that the missive “may be accepted almost as an
authoritative declaration of the scope and effect of the [first] amendment thus
secured,” the Court reprinted a flawed transcription of the Danbury letter.
Most scholars agree that the wall metaphor played no role in the Court’s
decision.
Chief Justice Morrison R. Waite, who authored the opinion,
was drawn to another clause in Jefferson’s text, but he could not edit the
letter artfully to leave out the figurative phrase.
The Chief Justice relied on Jefferson’s statement that the powers of
civil government could reach men’s actions only and not their opinions.
The Reynolds Court was focused on the legislative powers of
Congress to criminalize the Mormon practice of polygamy and was apparently drawn
to this passage because of the mistranscription of “legitimate
powers” as “legislative powers.”
But for this erroneous transcription, the Court might have had
little or no interest in the Danbury letter and the wall metaphor might not have
entered the American legal lexicon.

Nearly seven decades later, in the landmark case of Everson v. Board
of Education (1947), the Supreme Court “rediscovered” the metaphor and
elevated it to constitutional doctrine. Citing
no source or authority other than Reynolds, Justice Hugo L. Black,
writing for the majority, invoked the Danbury letter’s “wall of
separation” passage in support of his strict separationist construction of the
First Amendment prohibition on laws “respecting an establishment of
religion.” “In the words of
Jefferson,” the Court famously declared, the First Amendment has erected
“ëa wall of separation between church and State’. . . .
That wall must be kept high and impregnable.
We could not approve the slightest breach.”
Like Reynolds, the Everson ruling was replete with
references to history, especially the roles played by Jefferson and Madison in
the Virginia disestablishment struggles in the tumultuous decade following
independence from Great Britain. Jefferson
was depicted as a leading architect of the First Amendment despite the fact that
he was in France when the measure was drafted by the First Federal Congress in
1789.

Black and his judicial brethren also encountered the metaphor in briefs
filed in Everson. In a
lengthy discussion of history supporting the proposition that “separation of
church and state is a fundamental American principle,” an amicus brief filed
by the American Civil Liberties Union (ACLU) quoted the clause in the Danbury
letter containing the “wall of separation” image.
The ACLU ominously concluded that the challenged state statute, which
provided state reimbursements for the transportation of students to and from
parochial schools, “constitutes a definite crack in the wall of separation
between church and state. Such
cracks have a tendency to widen beyond repair unless promptly sealed up.”

The trope’s current fame and pervasive influence in popular, political,
and legal discourse date from its rediscovery by the Everson Court.
Shortly after the ruling was handed down, the metaphor began to
proliferate in books and articles. In
a 1949 best-selling anti-Catholic polemic, American Freedom and Catholic
Power (Beacon Press), Paul Blanshard advocated an uncompromising political
and legal platform favoring “a wall of separation between church and state.”
Protestants and Other Americans United for the Separation of Church and
State (today known by the more politically correct appellation of “Americans
United for Separation of Church and State”), a leading strict separationist
advocacy organization, wrote the phrase into its 1948 founding manifesto.
Among the “immediate objectives” of the new organization was “[t]o
resist every attempt by law or the administration of law further to widen the
breach in the wall of separation of church and state.”

The Danbury letter continued to be cited frequently and favorably by the
Supreme Court. In McCollum v.
Board of Education (1948), the following term, and in subsequent cases, the
Court essentially constitutionalized Jefferson’s phrase, subtly and blithely
substituting his figurative language for the literal text of the First
Amendment. In the last half of the
twentieth century, the metaphor emerged as the defining motif for church-state
jurisprudence.

The Trouble with
Metaphors in the Law

Metaphors are a valuable literary device.
They enrich language by making it dramatic and colorful, rendering
abstract concepts concrete, condensing complex concepts into a few words, and
unleashing creative and analogical insights.
But their uncritical use can lead to confusion and distortion.
At its heart, metaphor compares two or more things that are
not, in fact, identical. A
metaphor’s literal meaning is used nonliterally in a comparison with its
subject. While the comparison may
yield useful insights, the dissimilarities between the metaphor and its subject,
if not acknowledged, can distort or pollute one’s understanding of the
subject. Metaphors inevitably graft
onto their subjects connotations, emotional intensity, and/or cultural
associations that transform the understanding of the subject as it was known
pre-metaphor. If attributes of the
metaphor are erroneously or misleadingly assigned to the subject and the
distortion goes unchallenged, then the metaphor may reconceptualize or otherwise
alter the understanding of the underlying subject.
The more appealing and powerful a metaphor, the more it tends to supplant
or overshadow the original subject, and the more one is unable to contemplate
the subject apart from its metaphoric formulation.
Thus, distortions perpetuated by the metaphor are sustained and
magnified.

The judiciary’s reliance on an extraconstitutional metaphor as a
substitute for the text of the First Amendment almost inevitably distorts
constitutional principles governing church-state relationships.
Although the “wall of separation” may felicitously express some
aspects of First Amendment law, it seriously misrepresents or obscures others.
In Thomas Jefferson and the Wall of Separation Between Church and
State, I contend that the wall metaphor mischievously misrepresents
constitutional principles in at least two important ways:

First, Jefferson’s trope emphasizes separation between church
and state–unlike the First Amendment, which speaks in terms of the
nonestablishment and free exercise of religion.
Jefferson’s Baptist correspondents, who agitated for disestablishment
but not for separation, were apparently discomfited by the figurative phrase
and, perhaps, even sought to suppress the president’s letter.
They, like many Americans, feared that the erection of such a wall would
separate religious influences from public life and policy.
Few evangelical dissenters (including the Baptists)
challenged the widespread assumption of the age that republican government and
civic virtue were dependent on a moral people and that morals could be nurtured
only by the Christian 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 civil government 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 on 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 national government. Similarly,
the religion provisions were added to the Constitution to protect religion and
religious institutions from corrupting interference by the national government
and not to protect the civil state from the influence of, or overreaching by,
religion. As a bilateral barrier,
however, the wall unavoidably restricts religion’s ability to influence public
life, and, thus, it necessarily exceeds the limitations imposed by the
Constitution.

Herein lies the danger of this metaphor.
The “high and impregnable” wall constructed by the modern Court has
been used to inhibit religion’s ability to inform the public ethic, deprive
religious citizens of the civil liberty to participate in politics armed with
ideas informed by their spiritual values, and infringe the right of religious
communities and institutions to extend their prophetic ministries into the
public square.
The wall has been used to silence the religious voice in the
public marketplace of ideas and to segregate faith communities behind a
restrictive barrier.

If, as I have argued, the wall is a profoundly flawed metaphor for First
Amendment doctrine, then should we search for a better, alternative metaphor,
such as James Madison’s “line of separation”?
I think not. Although other
tropes may yield interesting insights, we are best served by returning to the
text of the First Amendment.

Conclusion

Jefferson’s figurative language has not produced the practical
solutions to real world controversies that its apparent clarity and directness
lead its proponents to expect. Indeed,
this wall has done what walls frequently do ñ it has obstructed the view.
It has obfuscated our understanding of constitutional principles
governing church-state relationships.

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.
________________________

Daniel L. Dreisbach
is a Professor of Justice, Law and Society at American University.
His most recent book is Thomas Jefferson and the Wall of Separation
Between Church and State (New York University Press, 2002), from which this
article is adapted.