Saturday, April 19, 2014

Jefferson's "Wall of Separation": Sure, but how high?

Necessary background re the latest foofaraw over Thomas Jefferson and religion, as litigated by Jonathan Rowe, et al., here here here and here.

Arthur Scherr writes:
“Were Jefferson alive, he would probably say, contrary to the claims of the Religious Right and its scholarly adherents, who fecklessly attempt to depict him as a man of devout Christian faith, ‘let the wall of separation stand.’” 
but the question is not whether there's a wall, but how high and far it should go.  As legal scholar and historian Daniel Dreisbach argues, the wall of separation between church and state was never intended--even by Jefferson--to be the absolute barrier between religion and politics that 20th century jurisprudence began to fashion it into:

The Mythical "Wall of Separation": How a Misused Metaphor Changed Church–State Law, Policy, and Discourse


No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson's "wall of separation between church and state."

Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement, and it has become the sacred icon of a strict separationist dogma that champions a secular polity in which religious influences are systematically and coercively stripped from public life.

In our own time, 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 nowhere to be found in the U.S. Constitution. In Everson v. Board of Education (1947), the United States Supreme Court was asked to interpret the First Amendment's prohibition on laws "respecting an establishment of religion." "In the words of Jefferson," the justices famously declared, the First Amendment "was intended to erect ‘a wall of separation between church and State'...[that] must be kept high and impregnable. We could not approve the slightest breach."

In the half-century since this landmark ruling, the "wall of separation" has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity. The trope's continuing influence can be seen in Justice John Paul Stevens's recent warning that our democracy is threatened "[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 come to dominate church-state law and policy? Of Jefferson's many celebrated pronouncements, this is one of his most misunderstood and misused. I would like to challenge the conventional, secular myth that Thomas Jefferson, or the constitutional architects, erected a high wall between religion and the civil government...

Read on.

21 comments:

David Ivester said...

1. Dreisbach’s fundamental error is his largely unspoken and unexamined presumption that the Constitution’s separation of church and state is merely a First Amendment textual matter. It is rather a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

Dreisbach makes much of the observation that the phrase “separation of church and state” does not appear in the text of the Constitution. The absence of the metaphor commonly used to name one of the Constitution’s principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

To the extent that some would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some, including Dreisbach, try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

The further notion, advanced by some and implied by Dreisbach, that the Supreme Court's recognition of the constitutional separation of church and state in Everson is all Justice Black's doing is laughable. All nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.

David Ivester said...

2. Dreisbach also argues that the Court should not have “incorporated” the establishment clause constraints into the rights embraced by the 14th Amendment because, according to him, that clause did not express any individual right to be free of government established religion, but rather only allocated jurisdictional authority over that subject between the federal and state governments. I think the historical evidence shows that the founders understood and intended the First Amendment to serve both functions. Dreisbach’s effort to confine it to just one is unwarranted. In any event, it is plain that, by the time the 14th Amendment was adopted, the First Amendment and the general concept of separation of church and state were widely understood to embody individual rights, so it is that conception that would drive the Court’s interpretation of the scope of the 14th Amendment.

As for whether the metaphorical wall of separation is or should be high and impregnable, Madison touched on just this point in his Detached Memoranda. He not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s early actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

In its jurisprudence, the Supreme Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the houses of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as actually maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

Tom Van Dyke said...

David Ivester said...
1. Dreisbach’s fundamental error is his largely unspoken and unexamined presumption that the Constitution’s separation of church and state is merely a First Amendment textual matter. It is rather a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances.


Welcome, David. If it's OK, go a little slower so our readers can keep up with you.

"Church and state" is not the same thing as "religion and politics." So we seem to be OK there.

You start out like a house on fire but by the end

In its jurisprudence, the Supreme Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the houses of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as actually maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

I think we're on the same page, you & I, mebbe even with Dr. Dreisbach. And per the 10 Suggestions, [many of] the people hereabouts appreciate the nuances Van Orden v. Perry and McCreary County v. ACLU. We actually get it.

I see you're a lawyer. Which is cool, we have at least 2 here. But that's not the same as a historian.

Hey, we don't play the credentials game around here---Dreisbach has a JD and a doctorate in history---but it's OK not to steamroll even us high school graduates. Mostly we read the Founders for ourselves and debate--or agree--based on the source documents.

Dreisbach argues here that Hugo Black in particular misused the Founding documents, turning a stray phrase from Jefferson into a legal tyranny.

That will not do.

wsforten said...

I'm still of the opinion that Jefferson was using a commonly understood phrase when he referred to the "wall of separation," and every pre-19th century usage of this phrase that I have found has used it in reference to something which prevents complete union. I have not discovered a single use in which this phrase refers to something which establishes complete disunion. The usage of this phrase during the century preceding Jefferson's letter definitely supports Dreisbach's conclusion.

By the way, we previously discussed the history of this phrase at: http://americancreation.blogspot.com/2013/10/jefferson-and-real-meaning-of-wall-of.html

David Ivester said...

Tom,

I’m no stranger to the site, having mostly watched and learned from the sidelines and occasionally offered a thought (sometimes using my internet pseudonym Doug Indeap), so I understand the site’s focus on history and further understand it is run and frequented by some very knowledgeable folks. I have no aim or delusion about steamrolling anyone here.

My critique of Dreisbach’s thesis is directed largely to his analytical approach and only indirectly addresses the historical matters, e.g., the Danbury letter.

Dreisbach (and he’s hardly alone in this) focuses on the Supreme Court’s use of that letter as if that was the primary basis of the Court’s decisions. It is not.

Preceding that though, Dreisbach assumes, without really saying so, that the Constitution’s separation of church and state is derived only from the text of the First Amendment. While the Court naturally focuses on the First Amendment (because it is the most obvious manifestation of that separation and legal issues tend to be cast in terms of compliance with this or that provision of law), the separation of church and state is even more fundamentally reflected in the structure of the Constitution. Dreisbach argues that the Court erred in interpreting the First Amendment essentially by swapping out Jefferson’s phrase for the actual text of the Amendment. My point is that in making that argument, he misses the forest for the trees. The Court was recognizing a principle that was deeply grounded in the Constitution as a whole and not just in the First Amendment, and it certainly did not simply take Jefferson’s metaphor and substitute it for the Amendment’s text.

My last point, where my house on fire seemed to fizzle, was to point out that this “absolute” or “impregnable” wall notion is a bit of a strawman. It does not exist—except in rhetoric. Even in Everson, after enthusing about a high and impregnable wall, Black led a majority of five to uphold a state’s support of transporting students to parochial schools—over the protests of the minority of four who wondered aloud about the majority not living up to the very principles (i.e., the wall) it purported to champion. So, sure, the Court’s current jurisprudence maintains a “wall” so called of sorts between church and state, but serious discussion should not be predicated on any supposition that that wall is or practicably can be “absolute” or “impregnable.”

Tom Van Dyke said...

So, sure, the Court’s current jurisprudence maintains a “wall” so called of sorts between church and state, but serious discussion should not be predicated on any supposition that that wall is or practicably can be “absolute” or “impregnable.”

This is a valid point--speaking legally. However, there's quite a common perception--even among historians [and I daresay some judges], who should know better--who take the Everson rhetoric at face value and that the Founders intended the wall to be very high indeed.

Also, consider the numerous the administrators who surrender to the legal threats of the activist strict separationist groups rather than risk a legal fight.

In large part, the perception is indeed the reality, and the common perception is wrong.

Dreisbach:

The "high and impregnable" wall central to the past 50 years of church-state jurisprudence is not Jefferson's wall; rather, it is the wall that Black--Justice Hugo Black--built in 1947 in Everson v. Board of Education.

The differences between the two walls are suggested by Jefferson's record as a public official in both Virginia and the nation, which shows that he initiated practices and implemented policies inconsistent with Justice Black's and the modern Supreme Court's "high and impregnable" wall of separation. Even among the metaphor's proponents, this has generated much debate concerning the proper dimensions of the wall.

Whereas Jefferson's wall expressly separated the institutions of church and state, the Court's wall, more expansively, separates religion and all civil government.

Jefferson's wall separated church and the federal government only. By incorporating the First Amendment non-establishment provision into the due process clause of the Fourteenth Amendment, Black's wall separates religion and civil government at all levels--federal, state, and local.

By extending its prohibitions to state and local jurisdictions, Black turned the First Amendment, as ratified in 1791, on its head. A barrier originally designed, as a matter of federalism, to separate the national and state governments, and thereby to preserve state jurisdiction in matters pertaining to religion, was transformed into an instrument of the federal judiciary to invalidate policies and programs of state and local authorities. As the normative constitutional rule applicable to all relationships between religion and the civil state, the wall that Black built has become the defining structure of a putatively secular polity.

David Ivester said...

Okay, so now we're talking about degrees of "highness." My point, apart from noting that the wall is not absolute or impregnable, is that, as maintained by the courts, also is low enough to allow all sorts of connections between church and state--connections that may not be consistent with the "pure" principle, at least as envisioned by Madison. Dreisbach, on the other hand, looks at the same wall (I suppose) and sees it as higher, rather than lower, than Jefferson and Madison had in mind.

While some, including you I gather, consider the wall too high, others, including me, think the courts have already lowered it more than warranted to serve the purposes of the principle. When I hear that already low wall characterized as anything akin to absolute, I can but wince and smile at how different a thing can appear to different people.

Tom Van Dyke said...

Yeah, I know what you mean.

"And of course, the cadets of USAFA are completely free to say “so help me God” if they so choose. Our issue is that this important decision should be THEIR clear choice; coercion, bullying, and force shouldn’t play a role in what they choose. But the dominionist Christian American Taliban was never very big on “choice”.

RMRF’s disgracefully repugnant historical fabrication that the Founding Fathers were all merry Christian supremacist theocrats flies in the face of literally all that we know about them, historically. These were genuinely and fiercely secular gentlemen of destiny. In the final analysis, Enlightenment Rationalism profoundly guided them in spite of their personal religious inclinations."

http://www.dailykos.com/story/2014/04/04/1289720/-Battle-of-the-Billboards-Christian-Taliban-vs-Constitution-at-Air-Force-Academy

Tom Van Dyke said...

Or to take it away from the fever swamp of the anti-religious agitators and the alleged "dominionists,"

http://mirrorofjustice.blogs.com/mirrorofjustice/2014/04/mayor-de-blasio-allows-religious-groups-access-to-public-school-classrooms-on-equal-terms.html

Mayor de Blasio Allows Religious Groups Access to Public School Classrooms on Equal Terms

New York City Mayor Bill de Blasio has reversed the New York City Department of Education's policy of exclusion of religious groups that engage in "worship" from the use, on equal terms with other groups, of public school classrooms--a policy that was upheld several times by the Second Circuit as vindicating "interests favored by the Establishment Clause." The Mayor concluded that "[a] faith-based organization has a right like anyone else" to use the public school space.

Like Jefferson did over 200 years ago.

http://nypost.com/2012/08/11/nyc-vs-jefferson-unfair-worship-ban/

[You know, it's very difficult to find on Google that government buildings were used for Sunday services in Jefferson's day except for right-wing advocacy sites. No wonder so few know these simple facts about religion and the Founding. In the least the "mainstream" has bleached out quite a bit of what used to be common knowledge.]

Skyline Spirit said...

pretty nice blog, following :)

jimmiraybob said...

DD - “Throughout his public career, including two terms as President, Jefferson pursued policies incompatible with the ‘high and impregnable’ wall the modern Supreme Court has erroneously attributed to him. For example, he endorsed the use of federal funds to build churches and to support Christian missionaries working among the Indians. The absurd conclusion that countless courts and commentators would have us reach is that Jefferson routinely pursued policies that violated his own ‘wall of separation.’”

This sounds like a reference to David Barton’s work which is largely, if not completely, bogus. Writing in response to a resolution being advanced by Congressman Randy Forbes (R-VA) and based on her extensive research regarding Barton’s claims, Chris Rodda writes (1),

”Of the hundreds of Indian treaties made during the first fifty years following the ratification of the First Amendment, only nine contained provisions related in any way whatsoever to religion, and only four of the nine contained an explicit provision for the building of a church or the salary of a religious teacher. Several of these were nothing more than provisions compensating missionaries for the churches and other buildings they lost when Indian land was ceded and/or relocating the missionaries to the land reserved to the Indians in the treaty. Another example, the 1794 treaty with the Oneida and other tribes, included a provision to build a church to replace a church that the British had burnt down when these tribes sided with the Americans during the Revolutionary War. In this same fifty year period, only one treaty provided direct funding to schools run by a religious organization. This was an 1827 treaty with the Creeks, which provided funding for the tribe's three existing schools, which had been established by missionaries. This is the basis of Mr. Forbes's claim that our early Congresses ‘frequently appropriated money for missionaries and for religious instruction.’”

Dr. warren Throckmorton has done similar debunking(2).

Since Dreisbach wrote the essay that you cite in 2006, he might want to revisit this – if he hasn’t yet.

1) @
http://www.huffingtonpost.com/chris-rodda/david-bartons-lies-in-act_b_858570.html

2) @
http://gettingjeffersonright.com/david-bartons-capitol-tour-did-thomas-jefferson-spend-federal-funds-to-evangelize-the-kaskaskia-indians/

http://www.patheos.com/blogs/warrenthrockmorton/2011/04/19/david-barton-on-thomas-jefferson-the-kaskaskia-indians/

Tom Van Dyke said...

Getting Jefferson Right is a polemic about What David Barton Got Wrong, as is all this quibbling that picks out minor points like the Kaskaskia Indians while completely ignoring the bigger picture being discussed here.

jimmiraybob said...

Here's how making an argument works. One builds a case using evidence to support a thesis. The weaker the evidence, the weaker the thesis.

Tom Van Dyke said...

Here's how it works: Quibbling over trivia and ignoring 99% of the rest of what the man said is dishonest and tiresome.

jimmiraybob said...

Your honor, yes, my client did those things, but let's look at the bigger picture.

Well, my comment was that since the essay that you cite is old (2006), Dreisbach might want to revisit it (if he hasn’t yet). This is not an attack but something Dr. Dreisbach, a college professor, would likely tell a student in a similar situation.

If the segment that I call out can be supported then it would be rather newsworthy around here. If not, then it shouldn't be part of an argument.

Tom Van Dyke said...

That little factoid "gotcha" about the Kaskaskia Indians has been debated around here far more than the important stuff.

FTR, the bench rules that what Dreisbach wrote is technically correct but is a crappy argument. The use of government buildings for religious services that Jefferson himself attended is far more germane and persuasive, and one that your average anti-religion activist will tend to gloss over.

JMS said...

Dreisbach’s thesis is that Jefferson never intended for there to be a “wall of separation” between the church and state governments, only church and the federal government, and the establishment clause should not apply to limit state and local government officials. Perhaps metaphors don’t make good laws, but Dreisbach’s analysis of Hugo Black’s majority opinion and the invocation of the “wall of separation” in the Everson (1947) case is so inaccurate, unfair and misleading, that it cannot be refuted in a comment.

Dreisbach can only make his weak historical case by marginalizing Jefferson’s VA Statute of Religion Freedom (although he at least included it in the Appendix of his book)., which stated that, "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical" and that it is a clear infringement of liberty to force "him to support this or that teacher of his own religious persuasion". Therefore, the Statute concludes, "We, the General Assembly, do enact, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever ...." It is the “whatsoever” in the Statute that is the key link to the wall metaphor, because it accurately conveys Jefferson’s meaning which Justice Black described in Everson as a “high and impregnable” wall.

Jefferson’s metaphor meant that church association and membership should be entirely voluntary (free exercise of religion), and there should be no compulsory system of tithes or taxation supporting the clergy of an established church (which is what the Danbury, CT Baptists were complaining about). As Thomas Kidd noted, “Jefferson and James Madison thought separation of church and state entailed more than just the banning of official denominations (Jefferson, for example, refused to call for national days of prayer and fasting), but state-backed churches were clearly the core concern for both Jefferson and the Danbury Baptists.” I would also include James Madison, whom Dreisbach also marginalizes. In his letter to Edward Livingston of 1822 (four years after CT disestablished its Congregational church), Madison wrote that, "every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together."

Dreisbach goes on to claim that, "there is little evidence to indicate that Jefferson thought the metaphor [that wall of separation] encapsulated a universal privilege of religious liberty." But that universal privilege is exactly what Jefferson believed and it is discussed in the letter from the Danbury Baptists and in Jefferson's reply. The issue that Dreisbach ignores is the "universal privilege" known as natural rights.

The Danbury Baptists were unhappy with the “Standing Order” Congregationalist church in Connecticut and complained to the president that "what religious privileges we enjoy we enjoy as favors granted, and not as inalienable rights". To which Jefferson directly replied, "I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

Dreisbach would have us believe that while Jefferson thought natural rights could not be abrogated by Congress, he also believed that natural rights could be abridged by state governments enacting restrictions on religious liberty. But this is not true. Jefferson declared directly at the end of the VA Statute that, "if any act shall be hereafter passed to repeal the present or to narrow its operation, such act shall be an infringement of natural right."

jimmiraybob said...

"That little factoid "gotcha" about ...."

That little "factoid" is at the core of Dreisbach's argument - the one that you are promoting. Grow up.

Tom Van Dyke said...

Anonymous jimmiraybob said...
"That little factoid "gotcha" about ...."

That little "factoid" is at the core of Dreisbach's argument - the one that you are promoting. Grow up.


Not true. The argument holds absent that factoid.

Tom Van Dyke said...

Yes, david but Dreisbach's counter is that as governor of Virginia, Jefferson himself issued religious proclamations!


President Jefferson had been under Federalist attack for refusing to issue executive proclamations setting aside days for national fasting and thanksgiving, and he said he wanted to explain his policy on this delicate matter. He told Attorney General Levi Lincoln that his response to the Danbury Baptists "furnishes an occasion too, which I have long wished to find, of saying why I do not proclaim fastings & thanksgivings, as my predecessors [Presidents Washington and Adams] did." The President was eager to address this topic because his Federalist foes had demanded religious proclamations and then smeared him as an enemy of religion when he declined to issue them.
Jefferson's refusal, as President, to set aside days in the public calendar for religious observances contrasted with his actions in Virginia where, in the late 1770s, he framed "A Bill for Appointing Days of Public Fasting and Thanksgiving" and, as governor in 1779, designated a day for "publick and solemn thanksgiving and prayer to Almighty God."
How can Jefferson's public record on religious proclamations in Virginia be reconciled with the stance he took as President of the United States? The answer, I believe, is found in the principle of federalism. Jefferson firmly believed that the First Amendment, with its metaphoric "wall of separation," prohibited religious establishments by the federal government only. Addressing the same topic of religious proclamations, Jefferson elsewhere relied on the Tenth Amendment, arguing that because "no power to prescribe any religious exercise...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." He sounded the same theme in his Second Inaugural Address, delivered in March 1805...

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