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Wednesday, November 29, 2006

The Myth Behind "Separation of Church and State"

by Mathew D. Staver, Esq.
Copyright © 2000-2004

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.

Justice Oliver 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)

Thomas Jefferson 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.

Jefferson's letter 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)

Jefferson asked 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)

Mr. Lincoln 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)

To understand 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.

Endnotes

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).
3. See Everson v. Board of Education, 330 U.S. 1 (1947). See also McCollum v. Board of Education, 333 U.S. 203, 211 (1948).
4. Thomas 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, Pre sidential 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.
7. Id.
8. Id. at 462.
9. Id. at 463 n. 16.
10. Id. at 465.
11. Id. at 466.
12. Id. at 462 n. 13.
13. Thomas 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 Jefferson 3:378.
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 1:105.
17. Report 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 Jefferson 2:556.
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 § 1879 (1833).
22. Wallace v. Jaffree, 472 U.S . 38, 106 ( Rehnquist, J., dissenting) .
23. Daniel Dreisbach, Thomas Jefferson and the Danbury Baptists Revisited, 56:4 William and Mary Quarterly 805, 812 (1999).



Liberty Counsel - Post Office Box 540774 - Orlando, FL 32854 - Phone: (800) 671-1776 - Email:liberty@LC.org - ©1995-2006

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