Thomas Jefferson and the Wall of Separation
Between Church and State
An Interview with Author Daniel Dreisbach
By John W. Whitehead and Casey Mattox
10/28/02
In
1802 Thomas Jefferson penned a letter to the Danbury, Connecticut,
Baptist Association in which he described the First Amendment as erecting
a "wall of separation between church and state." That phrase,
largely forgotten for nearly 150 years, was reintroduced to our lexicon
in 1947 by Supreme Court Justice Hugo Black in his opinion in Everson
v. Board of Education, a case holding that state funded transportation
of all students to and from their schools, including parochial schools,
was constitutional. The wall metaphor has since been accepted by most
Americans, and many jurists, as the authoritative description of the
interaction between religion and civil government countenanced by
the First Amendment. In his latest book, Thomas Jefferson and the
Wall of Separation Between Church and State, Daniel Dreisbach
exposes the history of the wall metaphor and argues that the wall
is rooted in anti-Catholicism and the fear of religious influence
on public life. Dreisbach argues that the modern "wall of separation"
is not the wall that Jefferson wrote about in his letter to the Danbury
Baptists. According to Dreisbach, the wall metaphor misconceptualizes
the roles of religion and civil government by restricting religious
influence on public life, a result not called for by the text of the
First Amendment.
Daniel Dreisbach is a professor in the Department
of Justice, Law and Society at American University in Washington,
D.C., and the editor of Religion and Political Culture in Jefferson’s
Virginia (2000) and Religion and Politics in the Early Republic
(1996). We recently talked to Dreisbach about his latest book
and the role of religion in public life.
TRI: Justice Hugo Black is
often described as a textualist. So why, in this instance, did he
reach beyond the text of the First Amendment and use Thomas Jefferson’s
metaphor to describe the relationship between religion and civil government.
Dreisbach: A number of Supreme Court Justices
who depart from conventional interpretations often cloak their own
predilections in the clothing of originalism or adherence to history,
and I think to some extent that describes Black. I think he was aware
that there were problems in his interpretation of the First Amendment.
Are you saying that Justice
Black was dishonest?
I think that there are certainly questions about
the integrity of his historical approach. A man who wrote a very sympathetic
biography of Justice Black pointed out that when the Everson
decision came out, Black was surprised that there was so much criticism
of the history that he used in his opinion. He instructed his law
clerk to go and look up the debates of the First Congress. Now, I
think this in itself is very revealing; Justice Black is examining
the historical record after he has already issued the opinion.
I think that raises some very troubling questions about his historical
methodology. But I think he, like many judges and scholars, was driven
by his own predilections and thus was very selective in his use of
history. While he may claim to have the support of history, I think
he understood that this is in large measure a lawyer’s use of
history to advance a particular position that he happens to adhere
to.
So Black selectively
used history to advance an agenda?
This is often the case with the way courts and
judges use history. Let’s keep in mind that we are talking about
a profession that is trained in adversarial techniques. They are taught
how to use evidence and present evidence in a light most favorable
to a particular position. So, what I say of Black is true of many
judges, and it’s true of many lawyers, especially those lawyers
who use history. Now, I think Black is an interesting character. He
is a man who carried with him to the Supreme Court many biases and
prejudices. In his youth he was a member of the Ku Klux Klan.
Was that just a political
affiliation or do you think Black was sympathetic to the Klan’s
beliefs?
Well, I think that there probably was a
time in his life when he was somewhat sympathetic to the racial views
of the Klan. I am inclined to believe that he was able to shed some
of those prejudices as he matured. Having said that, I think throughout
his political career he was very happy to accept the support of his
former friends in that element of Alabama society. But even his son
acknowledged that while Black abandoned some of the racial views of
the Klan, one of the things that he did not abandon was the anti-Catholicism
or the fear and dread of the Catholic Church, which is very much part
of the Klan’s ideology.
But how did his feelings
about the Catholic Church influence his judicial opinions?
I think he was rather constant in that
respect throughout his political career as well as his career on the
Court. In Everson and McCollum v. Board of Education
the following year, we see a streak of anti-Catholicism not only in
Black but also other Justices of the Supreme Court. As one recent
Supreme Court Justice has said, it’s virtually impossible to
read those decisions of the Court in the late 1940's and into the
50's without understanding the depth and degree of anti-Catholicism
in American intellectual circles including the Justices of the Supreme
Court.
But the present Supreme
Court isn’t anti-Catholic, is it? Wouldn’t you agree that
those attitudes have changed?
Well, I think that’s a fair observation.
There are, in fact, a good number of Catholics who happen to sit on
the Supreme Court at the moment. But they are working on a foundation
that is rooted in Everson and McCollum. These are the
precedents upon which the last 50 years of Establishment Clause jurisprudence
have been built, and while they have made some desirable adjustments,
they have never fully repudiated the foundations laid in Everson
and McCollum.
But in Everson, the case
in which Black revived the "wall of separation" metaphor,
the Court held that the Establishment Clause did not prevent
the state from bussing Catholic schoolchildren to parochial schools.
The force and influence of Everson and
McCollum is less in the holdings themselves than in the dictum
and in the rhetoric that the Court used, and you find that influence
pervasive in legal thought. So when I look back on the decisions of
50 years ago, I see their significance less in the actual holdings
than in the rhetoric that the Court used and the tone that they set
for church-state jurisprudence.
You don’t find that
tone today?
I think the Court has adopted a much more sensitive
tone today. I find that recent jurisprudence is much more in line
with what I believe to be the historical understanding of the First
Amendment, but having said that, they have not fully abandoned those
foundations laid in 1947 and 1948.
In Santa Fe
v. Doe, the case holding
that a policy permitting student prayers at public high school games
was unconstitutional, it seems that there was a return to the antagonism
toward religious influence–or did you read it that way?
No, I think that’s true about the Sante
Fe case. I think going back to Justice Souter’s opinion in
Lee v. Weisman [where the Supreme Court held that invocations
by clergy before public school graduations were unconstitutional]
there was an attempt to aggressively revive the rhetoric and the tenor
of Everson. For many years, Justice John Paul Stevens has been
attempting at every opportunity to reassert the rhetoric and the tone
of Everson, but he has been pretty much a lone Justice in that
regard. But beginning with Lee v. Weisman, you see Justice
Souter joining that cause, and I think to some extent you see a revival
of the Everson rhetoric and tone in the majority opinion in
the Santa Fe case. So while I think that there is a richer
understanding of history on the Supreme Court today, I think Santa
Fe is an example of where the Court harkens back to the foundations
laid in Everson. So we’ve seen some back and forth in
the last five or six years of Court decisions. I think that the recent
voucher case [Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002)]
is a sign of hope, but there is not a clear direction being set here,
and most importantly the Court appears unwilling to revisit or repudiate
the hostile rhetorical tone set in the Everson case.
So the same fear of religion
still remains to some degree on the Court and still exerts an influence?
There is certainly a powerful segment of the Court
that reflects those fears. These are fears that were rooted in the
role of the Catholic Church in American society at mid-century. There
is still a group of Justices who reflect that fear. And this goes
to the very heart of why this metaphor is so troubling: the metaphor
misconceptualizes the First Amendment.
How does the "wall
of separation" metaphor misconceptualize the First Amendment?
The metaphor emphasizes the concept of separation,
unlike the First Amendment which speaks in terms of disestablishment,
or nonestablishment to be more precise, and of the free exercise of
religion. Furthermore, the wall of separation metaphor, unlike the
First Amendment, imposes restrictions on religion and religious perspectives.
The literal text of the First Amendment restricts government only;
whereas a wall, given its bilateral nature, restricts the role of
religion and faith communities as well. The wall metaphor implies
that the First Amendment restricts people of faith, religious spokesmen,
and religious leaders also, but that’s far beyond the requirement
of the text of the First Amendment.
Do you think the average
religious person is really restricted by the wall of separation metaphor?
Oh, absolutely. I think there is much evidence
to support this both in rhetoric and in judicial opinions. Quite often
the courts have embraced this wall metaphor as a substitute for the
First Amendment. It has been used to silence people speaking from
a religious perspective in the public marketplace of ideas. We see
this in court cases limiting the rights of students to express their
faith in public school settings. We see this in public forum cases
where religious groups want to use public forums on the same terms
and conditions as secular groups. The courts are restricting that
ability.
For example, the reaction
to Attorney General John Ashcroft’s morning Bible studies at
the Justice Department?
Right. I think that is a clear example of a restriction
on a person bringing their faith into the public arena. The Attorney
General and others at the Justice Department wish to ground their
daily activities in faith, but the media and critics in academia suggest
that somehow this is a violation of the First Amendment. They think
that this might be something offensive to a wall of separation, but
again we must remind ourselves that the wall of separation is not
a concept born of the First Amendment. It is a misrepresentation,
I believe, of what the First Amendment stands for.
You argue that
the "wall of separation" metaphor is grounded in the fear
of religion, particularly Catholicism, but is it possible to remove
the wall from these fears?
I think we must confront the uncomfortable fact
that for much of American history, the phrase "separation of
church and state" and its metaphoric formulation as a "wall
of separation" have been the expressions of exclusion, intolerance
and bigotry. These have been phrases that have been used to silence
people in communities of faith and to exclude religious persons from
full participation in public life. In the late 18th and
early 19th centuries, for example, Establishmentarians
[those who favored official state religious establishments] attempted
to frighten Americans by deliberately mischaracterizing the Baptist
aspirations for liberty of conscience and disestablishment. They said
that the Baptists advocated a separation of religion from public life
that would lead inevitably to political atheism and rampant licentiousness.
This illustrates that the language of separation didn’t come
from the advocates of separation, but was used by the Establishmentarians
to frighten people away from embracing the disestablishment agenda
of the Baptists.
In the election of 1800, it was the Jeffersonians
that used this separationist language to silence Jefferson’s
most vociferous critics, the Federalist clergy of New England, who
were trying to expose Jefferson as an infidel and as an atheist. In
the 1830's and 1840's we experienced a first big wave of Catholic
Irish immigrants, and this language of separation was being used by
Protestant nativists to marginalize this new immigrant group from
full participation in American life. This was repeated at the end
of the 19th century when the next big wave of Catholic
immigrants came to America. Finally, in the middle of the 20th
century, around the time of Everson and McCollum, we
again see the fear of the role of religion, and particularly Catholicism,
in American society. This fear drives this language of separation
of church and state and its metaphoric formulation of wall of separation.
So throughout our history this language and this metaphor have been
freighted with nativist and bigoted connotations, and I think it’s
time that we reexamine the propriety of their continued use in our
legal and political discourse.
What would you say to
the Jewish, Muslim or atheist parents who fear that without the "wall"
their children will be subjected to the Christian prayers of fellow
students?
Well, we have to start with a basic understanding
of the Establishment, Free Exercise, and Free Speech clauses and then
examine how the wall of separation reconceptualized them. My view
of the First Amendment is that it is intended and designed to create
an environment where various ideas and perspectives can compete in
a marketplace of ideas on the same terms and conditions. I would argue
that religious communities and religious perspectives, like those
of other artistic or political groups, should be able to compete in
that marketplace. An analysis that draws on the wall of separation
metaphor singles out the religious perspective. It treats religious
perspectives differently than other nongovernmental perspectives and
actually puts them at a disadvantage. So other faith communities–whether
they be Jewish or any other–have nothing to fear from the historic
understanding of the First Amendment. Indeed, I think what they have
to fear is a misinterpretation of the First Amendment through this
lens of a wall metaphor.
According to one poll,
69 percent of Americans believe that the phrase "wall of separation"
is in the First Amendment. Do you think the impact of the metaphor
has been greater in judicial opinions or in public opinion?
There is no doubt that many Americans view this
metaphor as supplanting the text of the First Amendment. That should
concern us greatly. But this public attitude is reflected by a number
of judges. One need not read deeply into case law to reach the conclusion
that there are many judges who believe that the First Amendment has
embraced this wall of separation metaphor. I think this is a good
place to recall how this wall of separation was first introduced into
the legal lexicon. Jefferson used this phrase in a letter that he
wrote in January 1802 to a Baptist association.
What was the contemporary
reaction to Jefferson’s letter?
In my book I lay out the argument and the supporting
evidence to suggest that the Danbury Baptists themselves were discomforted
by Jefferson’s use of this metaphor. Because the Baptists were
a minority community in New England, they were the objects of persecution.
They had been agitating for disestablishment and for liberty of conscience,
and what worried them was that Jefferson was leading them down a different
path, a path of separation, which is not what their agenda was about.
Again, they were arguing for disestablishment and liberty of conscience,
not separation, because they, like virtually all Americans at that
time, believed that religion played a vital role in promoting social
order and stability. The evidence is rather compelling that they were
somewhat embarrassed by the use of this metaphor.
You write that Jefferson
would have been surprised that his letter continues to have such an
impact two centuries later. Do you think he would be displeased with
the current interpretation of his wall?
Well, of course, that’s a very hard question
to answer because it involves a high degree of speculation. What I
would feel very comfortable in saying is that I think Jefferson was
in agreement with the part of his generation that believed that religion
played an essential role in a self-governing society for a democratic
people. He, like virtually all of his generation, believed that a
self-governing people must be a virtuous and self-controlled people,
and that religion was an essential element in promoting those qualities.
To the extent that a wall of separation has been used to exclude or
to limit the ability of religion to inform public life or to inform
the actions of public officials and private citizens, I think he would
find that worrisome. As president as well as in his career as a public
official in Virginia, Jefferson took a number of steps to try to encourage
virtue and religiosity within the public at large. Now, this is not
to say what Jefferson’s personal religious beliefs were. Even
those of the founding generation who were not particularly religious,
or perhaps were even privately skeptical about traditional Christianity,
nonetheless believed that religion was an indispensable support to
political prosperity and social order.
The First Amendment says,
"Congress shall make no law," etc. It wasn’t
until the 1940’s that the Supreme Court held that the First Amendment
applied to the states as well as the federal government. Should the
First Amendment have been incorporated to the states?
This is one way in which Jefferson’s understanding
of the wall has been transformed. In my book I argue that Jefferson
would have thought that his wall of separation was most appropriately
placed between state governments and the national governments on matters
pertaining to religion, such as Thanksgiving Day proclamations. Again,
let’s examine the context in which Jefferson wrote this letter.
In the early days of his administration, he was being criticized for
not appointing days for prayer and Thanksgiving. His Federalist critics
had said this was evidence that Jefferson was in fact a political
atheist and an infidel. Jefferson had refused to issue such proclamations,
and he wrote that one of the reasons he wanted to write the letter
was to explain to a wider constituency why he had declined to issue
a Thanksgiving Day proclamation. I think Jefferson believed that what
was appropriate for a state or local official to do, such as issuing
a Thanksgiving Day proclamation, which he did as Governor of Virginia,
was, because of that language in the First Amendment, not appropriate
for him to do as President of United States. What this tells us is
that Jefferson’s wall was placed not between church and state
in the most general sense. This was not a universal general principle.
Rather his wall was erected between what was appropriate for a national
chief executive to do and what was appropriate for a state chief executive
to do.
But, of course, at that
time there was no Fourteenth Amendment to extend the protections of
the Bill of Rights to the states. You acknowledge that Jefferson,
the author of the Virginia Statute for Religious Freedom, opposed
religious establishments by the states. Couldn’t the case be
made that the incorporation of the Establishment Clause to the states
is the completion of Jefferson’s ideal?
In the year 2002, we have to confront a First
Amendment that not only restricts Congress, as its text states, but
which has also been incorporated through the Fourteenth Amendment
and applied to the states. In my book I say that it’s very plausible
that Jefferson would have desired the various states to erect their
own walls of separation, so to speak, at the state level. But I think
he would have been very uncomfortable with the use of a First Amendment
wall, by way of incorporation or any other mechanism, to impose that
separation from the federal level. Now, why would he not see incorporation
of the Establishment and Free Exercise clauses to the states through
the Fourteenth Amendment as the fulfillment of his desires as you
asked in your question? I think that there are a couple of reasons.
First, I think it removes the average citizen from the process of
structuring their government. Moreover, incorporation itself has been
imposed upon us by unelected courts, and I think Jefferson would have
been uncomfortable with that. The second reason is that Jefferson,
like virtually all of his contemporaries, viewed the concept of federalism,
which separates the powers of the state governments from the power
of the federal government, as in itself a very important part of the
Bill of Rights. That is to say, I think he might have considered the
separation of the powers of the national government from the state
government as a more important right than those specifically enumerated
rights in the Bill of Rights. So when the Court overturned the Federalism
inherent in the Bill of Rights, they destroyed that structural protection
of our liberties in the original design of the Constitution, and I
think that would have made Jefferson uncomfortable and unhappy.
If not a "wall of
separation," how would you suggest that we describe the relationship
between religion and civil government?
I would suggest we return to the text of the First
Amendment. I think the Baptists were right to focus on concepts such
as disestablishment or nonestablishment or to use the terminology
of free exercise of religion or liberty of conscience. I see no compelling
need to abandon the text of the First Amendment in favor of a metaphor.
And let me just add this. I think metaphors are a beautiful part of
our literary heritage. I love metaphors. But I think that there is
grounds for some caution in their use in a legal context. In legal
discourse we need precision of expression: specific, strict, orderly
adherence to rules and past judicial decisions and statutes. Metaphors
are by definition comparisons of two things which are not actually
identical. That is the case with the wall of separation. The wall
of separation might help give us some insight into understanding the
First Amendment, but it carries with it things that are dissimilar
to what the First Amendment is about. Those dissimilarities introduce
misconceptualizations about the First Amendment. So I believe we should
indulge the use of metaphors in legal rhetoric with great caution.
What do you hope to accomplish
with this book?
I hope that I can bring some clarity to the debate
by urging those participants in the debate to move away from a misleading
metaphor and by refocusing our attention on the actual text of the
First Amendment. I think that if we abandon this metaphor, the debate
will be healthier and clearer. We will force those who are seeking
to exclude religion from public life to articulate the premises of
the position more clearly rather than simply relying on a slogan.
So I think that it’s healthy to reexamine this metaphor because
I think it will lead to a clearer and less ambiguous debate about
the proper role of religion in our society and culture.
To read the text of Jefferson’s letter to the
Danbury Baptists and a Library of Congress study on Jefferson’s
original drafts of the letter, go to http://www.loc.gov/loc/lcib/9806/danbury.html.
