This country was established upon
the assumption that religion was essential to good government. On July 13, 1787, the
Continental Congress enacted the Northwest Ordinance, which stated: "Religion,
morality and knowledge, being necessary to good government and the happiness of mankind,
schools and the means of education shall be forever encouraged."
(1) The First Amendment prohibited the federal government from establishing a
religion to which the several states must pay homage. The First Amendment provided
assurance that the federal government would not meddle in the affairs of religion within
the sovereign states.
In modern times
groups like the American Civil Liberties Union and Americans United for Separation of
Church and State have attempted to create an environment wherein government and religion
are adversaries. Their favorite phrase has been "separation of church and
state." These groups have intoned the mantra of "separation of church and
state" so long that many people believe the phrase is in the Constitution. In
Proverbs Chapter 18, verse 16, the Bible says, "He who states his case first seems
right until another comes to challenge him." I'm sure you have seen legal arguments
on television where the prosecution argues to the jury that the defendant is guilty. Once
the prosecution finishes the opening presentation, you believe that the defendant is
guilty. However, after the defense attorney completes the rebuttal presentation of the
evidence, you may be confused, or at least you acknowledge that the case is not clear cut.
The same is true
with the phrase "separation of church and state." The ACLU and the liberal media
have touted the phrase so many times that most people believe the phrase is in the
Constitution. Nowhere is "separation of church and state" referenced in the
Constitution. This phrase was in the former Soviet Union's Constitution, but it has never
been part of the United States Constitution.
Wendell Holmes once said, "It is one of the misfortunes of the law that ideas become
encysted in phrases, and thereafter for a long time cease to provoke further
analysis." (2) The phrase, "separation of church
and state," has become one of these misfortunes of law.
In 1947 the Supreme
Court popularized Thomas Jefferson's "wall of separation between church and
state." (3) Taking the Jefferson metaphor out of
context, strict separationists have often used the phrase to silence Christians and to
limit any Christian influence from affecting the political system. To understand
Jefferson's "wall of separation," we should return to the original context in
which it was written. Jefferson himself once wrote:
On every question
of construction, [we must] carry ourselves back to the time when the constitution was
adopted, recollect the spirit manifested in the debates, and instead of trying what
meaning may be squeezed out of the test, or invented against it, conform to the probable
one in which it was a part. (4)
was inaugurated as the third President on March 4, 1801. On October 7, 1801, a committee
of the Danbury Baptist Association wrote a congratulatory letter to Jefferson on his
election as President. Organized in 1790, the Danbury Baptist Association was an alliance
of churches in Western Connecticut. The Baptists were a religious minority in the state of
Connecticut where Congregationalism was the established church. (5)
The concern of the
Danbury Baptist Association is understandable once we understand the background of
church-state relations in Great Britain. The Association eschewed the kind of state
sponsored enforcement of religion that had been the norm in Great Britain.
The Danbury Baptist
Association committee wrote to the President stating that, "Religion is at all times
and places a Matter between God and Individuals -- that no man ought to suffer in Name,
person or affects on account of his religious Opinions." (6)
The Danbury Baptists believed that religion was an unalienable right and they hoped that
Jefferson would raise the consciousness of the people to recognize religious freedom as
unalienable. However, the Danbury Baptists acknowledged that the President of the United
States was not a "national Legislator" and they also understood that the
"national government cannot destroy the Laws of each State."
(7) In other words, they recognized Jefferson's limited influence as the federal
executive on the individual states.
Jefferson did not
necessarily like receiving mail as President, but he generally endeavored to turn his
responses into an opportunity to sow what he called "useful truths" and
principles among the people so that the ideas might take political root. He therefore took
this opportunity to explain why he as President, contrary to his predecessors, did not
proclaim national days of fasting and prayer.
went through at least two drafts. Part of the first draft reads as follows:
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 legitimate powers of government reach actions 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. 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... (8)
Levi Lincoln, the Attorney General, and Gideon Granger, the Postmaster General, to comment
on his draft. In a letter to Mr. Lincoln, Jefferson stated he wanted to take the occasion
to explain why he did not "proclaim national fastings & thanksgivings, as my
predecessors did." (9) He knew that the response would
"give great offense to the New England clergy" and he advised Lincoln that he
should suggest necessary changes. (10)
responded that the five New England states have always been in the habit of
"observing fasts and thanksgivings in performance of proclamations from the
respective Executives" and that this "custom is venerable being handed down from
our ancestors." (11) Lincoln therefore struck through
the last sentence of the above quoted letter about Jefferson refraining from prescribing
even occasional performances of devotion. Jefferson penned a note in the margin that this
paragraph was omitted because "it might give uneasiness to some of our republican
friends in the eastern states where the proclamation of thanksgivings" by their state
executives is respected. (12)
Jefferson's use of the wall metaphor in his letter to the Danbury Baptist Association, we
must compare his other writings. On March 4, 1805, in Jefferson's Second Inaugural
Address, he stated as follows:
In matters of religion, I have considered
that its free exercise is placed by the Constitution independent of the powers of the
General [i.e., federal] Government. I have therefore undertaken, on no occasion, to
prescribe the religious exercises suited to it; but have left them, as the Constitution
found them, under the direction and discipline of State or Church authorities acknowledged
by the several religious societies. (13)
Then on January 23,
1808, Jefferson wrote in response to a letter received by Reverend Samuel Miller, who
requested him to declare a national day of thanksgiving and prayer:
I consider the government of the United
States as interdicted by the Constitution from intermeddling with religious institutions,
their doctrines, discipline, or exercises. This results not only from the provisions that
no law shall be made respecting the establishment or free exercise of religion [First
Amendment], but from that also which reserves to the States the powers not delegated to
the United States [Tenth Amendment]. Certainly no power to prescribe any religious
exercise, or to assume authority in religious discipline, has been delegated to the
General [i.e., federal] Government. It must then rest with the States, as far as it can be
in any human authority. (14)
* * *
I am aware that the practice of my
predecessors may be quoted. But I have every belief, that the example of State executives
led to the assumption of that authority by the General Government, without due
examination, which would have discovered that what might be a right in State government,
was a violation of that right when assumed by another.... [C]ivil powers alone have been
given to the President of the United States, and no authority to direct the religious
exercises of his constituents. (15)
Comparing these two responses to
his actions in the state government of Virginia show the true intent of Jefferson's wall
metaphor. As a member of the House of Burgesses, on May 24, 1774, Jefferson participated
in drafting and enacting a resolution designating a "Day of Fasting, Humiliation, and
Prayer." (16) This resolution occurred only a few
days before he wrote "A Bill for Establishing Religious Freedom." In 1779, while
Jefferson was governor of Virginia, he issued a proclamation decreeing a day "of
publick and solemn thanksgiving and prayer to Almighty God." In the late 1770's, as
chair of the Virginia committee of Revisers, Jefferson was the chief architect of a
measure entitled, "A Bill for Appointing Days of Public Fasting and
Thanksgiving." Interestingly, this bill authorized the governor, or Chief Magistrate
with the advice of Counsel, to designate days of thanksgiving and fasting and, required
that the public be notified by proclamation. The bill also provided that "[e]very
minister of the gospel shall on each day so to be appointed, attend and perform divine
service and preach a sermon, or discourse, suited to the occasion, in his church, on pain
of forfeiting fifty pounds for every failure, not having a reasonable excuse." (17) Though the bill was never enacted, Jefferson was its
chief architect and the sponsor was none other than James Madison.
So what did Jefferson mean when he
used the "wall" metaphor? Jefferson undoubtedly meant that the First Amendment
prohibited the federal Congress from enacting any law respecting an establishment of
religion or prohibiting the free exercise thereof. As the chief executive of the federal
government, the President's duty was to carry out the directives of Congress. If Congress
had no authority in matters of religion, then neither did the President. Religion was
clearly within the jurisdiction of the church and states. As a state legislator, Jefferson
saw no problem with proclaiming days of thanksgiving and prayer, and even on one occasion
prescribed a penalty to the clergy for failure to abide by these state proclamations.
Jefferson believed that the Constitution created a limited government and that the states
retained the authority over matters of religion not only through the First Amendment but
also through the Tenth Amendment. (18) The federal
government had absolutely no jurisdiction over religion, as that matter was left where the
Constitution found it, namely with the individual churches and the several states.
In summary, the First Amendment
says more about federalism than religious freedom. In other words, the purpose of the
First Amendment was to declare that the federal government had absolutely no jurisdiction
in matters of religion. It could neither establish a religion, nor prohibit the free
exercise of religion. The First Amendment clearly erected a barrier between the federal
government and religion on a state level. If a state chose to have no religion, or to have
an established religion, the federal government had no jurisdiction one way or the other.
This is what Thomas Jefferson meant by the "wall of separation." In context, the
word "state" really referred to the federal government. The First Amendment did
not apply to the states. It was only applicable as a restraint against the federal
government. The problem arose in 1940 (19) and then again
in 1947 (20) when the Supreme Court applied the First
Amendment to the states. This turned the First Amendment on its head, and completely
inverted its meaning. (21) The First Amendment was never
meant to be a restraint on state government. It was only applicable to the federal
government. When the Supreme Court turned the First Amendment around 180 degrees and used
Jefferson's comment in the process, it not only perverted the First Amendment, but
misconstrued the intent of Jefferson's letter.
There is nothing wrong with the way
Jefferson used the "wall of separation between church and state" metaphor. The
problem has arisen when the Supreme Court in 1947 erroneously picked up the metaphor and
attempted to construct a constitutional principal. While the metaphor understood in its
proper context is useful, we might do well to heed the words of the United States Supreme
Court Justice William Rehnquist:
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. (22)
Jefferson used the phrase
"wall of separation between church and state" as a means of expressing his
republican view that the federal or general government should not interfere with religious
matters among the several states. In its proper context, the phrase represents a clear
expression of state autonomy.
Accordingly, Jefferson saw no
contradiction in authoring a religious proclamation to be used by state officials and
refusing to issue similar religious proclamations as president of the United States. His
wall had less to do with the separation of church and all civil government than
with the separation of federal and state governments. (23)
The "wall of separation
between church and state" phrase as understood by Jefferson was never meant to
exclude people of faith from influencing and shaping government. Jefferson would be
shocked to learn that his letter has been used as a weapon against religion. He would
never countenance such shabby and distorted use of history.
1. Ord. or 1789,
July 13, 1787, Art. A III, reprinted in Documents Illustrative of the Formation of the
Union of American States 52 (1927).
2. Hyde v. United States, 225 U.S.
347, 384 (1912) (Holmes, J., dissenting).
Everson v. Bd. of Educ., 330 U.S. 1 (1947). See also McCollum v. Bd. of Educ.,
333 U.S. 203, 211 (1948).
Jefferson to Messers. Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson, a Committee
of the Danbury Baptist Association in the State of Connecticut, January 1, 1802,
Presidential Papers Microfilm, Thomas Jefferson Papers, Manuscript Division,
Library of Congress, Ser. I, reel 25, November. 15, 1801 - March 31, 1802; Jefferson to
William Johnson, June 12, 1823, Presidential Papers Microfilm, Thomas Jefferson Papers,
Manuscript Division, Library of Congress, Ser. I, reel 70. The letters referenced below
can be found at this citation.
5. Daniel Dreisbach, "Sowing Useful
Truths and Principles": The Danbury Baptists, Thomas Jefferson, and the "Wall of
Separation," 39 Journal of Church and State 455, 459 (1997).
6. Id. at 460.
8. Id. at 462.
9. Id. at 463 n. 16.
10. Id. at 465.
11. Id. at 466.
12. Id. at 462 n. 13.
Jefferson to the Reverend Samuel Miller, January 23, 1808, in Andrew A. Lipscomb et al.,
eds., The Writings of Thomas Jefferson 11:428; Jefferson, Second Inaugural
Address, March 4, 1805, n Andrew A. Lipscomb et al., eds., The Writings of Thomas
14. Thomas Jefferson to the Reverend Samuel
Miller, January 23, 1808, in The Writings of Thomas Jefferson 11:428..
15. Id. at 11:430.
16. J. Body, ed., The Papers of Jefferson
of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI
(Richmond, Va., 1984) 59-60; Julian P. Boyd, et al., eds., The Papers of Thomas
18. In the Kentucky-Virginia Resolutions of
1798, Jefferson wrote that the powers not delegated to the United States are reserved to
the States and that "no power over the freedom of religion, freedom of speech, or
freedom of the press being delegated to the United States by the Constitution, nor
prohibited by it to the States, all lawful powers respecting the same did of right remain,
and were reserved to the States, or to the people. . . [and are] withheld from the
cognizance of federal tribunals." The Kentucky-Virginia Resolutions and Mr.
Madison's Report of 1799 2-3.
19. See Cantwell v. Connecticut, 310
U.S. 296 (1940).
20. See Everson, 330 U.S. at 1.
21. One of the early Supreme Court Justices,
Joseph Story, wrote that "the whole power over the subject of religion is left
exclusively to the state governments, to be acted upon according to their own sense of
justice, and the state constitutions. . ." J. Story, Commentaries on the
Constitution ï¿½ 1879 (1833).
22. Wallace v. Jaffree, 472 U.S. 38,
106 (Rehnquist, J., dissenting).
Dreisbach, Thomas Jefferson and the Danbury Baptists Revisited, 56:4 William and
Mary Quarterly 805, 812 (1999).