By John W. Whitehead and Casey Mattox
October 28, 2002
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.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.