“The adulterous connection of church and state.”
Is “separation of Church and State” a bedrock principle of the U.S. Constitution? Should it be? The answers of constitutional historians Daniel L. Dreisbach and Philip Hamburger fly in the face of conventional wisdom, embodied in such cases as Santa Fe Independent School District v. Doe (2000), in which the Supreme Court held that students at a Texas high school were to be barred from delivering nonsectarian, nonproselytizing prayers before their football games—even though the students themselves had voted for such ceremonies.
The Santa Fe decision was based on a 1992 Supreme Court ruling that had banned officially sponsored nonsectarian prayers at a public-middle-school graduation ceremony on the grounds that,
at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so.
Listening to a school-sponsored prayer violates the Constitution, a majority of the Court believes, because the “coercive” nature of such prayers leads the nonbelieving student to feel alienated from his classmates.
Because it is inconceivable that the Framers of the First Amendment were concerned with such trivial considerations, we are led to ask how their language has come to be so interpreted. The First Amendment, after all, states only (in pertinent part) that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This prohibition is directed only at the federal legislature—so how can it be construed to prohibit the activities of a group of Texas students?
Two questions must be answered. First, has the language of the First Amendment been properly construed in barring such activities as school prayer?; second, given the federal system of joint sovereignty by state and national governments, is it appropriate to extend First Amendment prohibitions against congressional action to state and local governments? Explaining how our Supreme Court has moved from declaring, as it did in 1892, that ours is a “Christian nation” to enforcing a secular conception of the American polity is a difficult task, and neither Dreisbach nor Hamburger attempts to explore every byway of this bizarre doctrinal journey. Both focus their attention, however, on two villains: one, a willing, and the other, an unwitting, accomplice.
The principal perpetrator they identify in the person of U.S. Supreme Court Associate Justice Hugo Black, who wrote in Everson v. Board of Education of Ewing Township (1947) that
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”
Later, in his summation, Black stated that “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” He then proceeded, nevertheless, to hold that it was permissible for the state of New Jersey to use public funds to reimburse transportation costs of pupils attending parochial schools, so long as such reimbursement was available to all students.
Later cases, such as those involving the banning of school prayer or Bible reading in public schools, took Black’s language more literally, actually erecting the “high and impregnable” wall and more clearly forbidding any publicly funded participation in religion. Is this what Jefferson had in mind?
Dreisbach’s answer seems to be “Not really.” His volume, which he correctly describes as a “sourcebook,” features a short essay (about 130 pages) reviewing Jefferson’s views on religion and exploring the circumstances in which Jefferson wrote his “wall of separation” statement. The rest of the book consists of extensive notes and reprints of items from Jefferson’s papers, including drafts and the final text of his 1802 missive to the Danbury Baptist Association. The Baptists had written Jefferson to “rejoice” in his election as President, to indicate their belief that his selection was the work of God, and to opine that “Religion is at all times and places a Matter between God and Individuals—That no man ought to suffer in Name, person or effects on account of his religious Opinions . . . ” They sought Jefferson’s indication of agreement, and so he wrote that
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the 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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, 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.
I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.
Not much here has to do with invocations at football games, and, as Dreisbach indicates, it is significant that this official letter of a chief magistrate to some of his constituents closes with a reference to prayer. Moreover, Dreisbach shows, Jefferson’s purpose in writing this letter was to “heave a brick” at some of his Federalist Connecticut clerical critics, who had campaigned hard against his election, claiming that he was a shameless atheist. The Baptists—Jeffersonian Republicans who felt discriminated against by members of the state-supported Congregationalist Church in Connecticut—were celebrating the victory of their candidate and seeking to undercut support for their foes. As both Dreisbach and Hamburger suggest, the letter to the Danbury Baptists was not really a demand by Jefferson for religious freedom but more of an attempt to silence his Federalist clerical critics.
Moreover, as Dreisbach and Hamburger demonstrate, Jefferson’s letter had no immediate impact on constitutional interpretation; the religious sentiments expressed in the letter, however, may well have represented his true beliefs. Jefferson did depart from the practice of Washington and Adams by declining to use the bully pulpit of the presidency to proclaim national days of fasting, humiliation, and prayer. Nevertheless, shortly after he wrote the 1802 letter, he began to attend religious services regularly held in the U.S. House of Representatives, and he never again used the “wall of separation” metaphor to describe the relationship between religion and government. Furthermore, the Baptists, who—as both Hamburger and Dreisbach stress—were really not in favor of separation of Church and State, never chose to publish Jefferson’s letter; and the “wall of separation” metaphor had virtually no influence until 1947, when it was cited by Black (although it had been resurrected previously by the Supreme Court to support federal prosecution of Mormon polygamy).
These two books reinforce the work of earlier scholars who, writing bravely against the consensus, have demonstrated that the modern interpretation of Jefferson’s sentiments differ from the prevailing views of the Framers’ era. The Founding Fathers often stressed the essential role of religion in the healthy operation of the young republic; and Hamburger notes that, “At the very least, in their social attitudes Baptists seem to have had no quarrel with the commonplace that religion was essential for moral-ity, republican government, and freedom.”
These books clearly explain that the purpose of the First Amendment’s “establishment” clause was to leave the individual states free to decide for themselves how to integrate religion with government. The authors of the First Amendment did intend that no sect be established as the mandatory national religion. Their purpose, however, was not to injure religion but to promote recognition of the fact that, at the time of the framing of the amendment, most of the states (like Massachusetts and Connecticut) had laws either establishing churches or imposing religious qualifications for the exercise of the franchise or for officeholding. Thus, like the other provisions of the Bill of Rights, the First Amendment was an attempt to protect the states from an overweening federal government, which might unduly interfere with their constitutional prerogatives. Dreisbach notes that to construe the First Amendment, as Black and his acolytes have done, as restricting individual states’ and localities’ religious preferences is to turn it “on its head.”
Dreisbach demonstrates that even Jefferson clearly understood that the First Amendment was limited to restrictions on the federal government. So why is it now applied to the states? Justice Black, for one, did not doubt that it should be. Writing in Everson, Black based his decision on “The First Amendment, as made applicable to the states by the Fourteenth.” The 14th Amendment, though, does not expressly incorporate the First, and the plethora of federal-court decisions applying the Establishment Clause against state and local governments have followed the curious argument that the 14th Amendment’s assurances that no state shall deprive any person of “due process” or the “equal protection of the laws” or the “privileges and immunities of United States citizenship” somehow mean that, if the federal government is barred from encouraging religious activities, so are the states.
Reams have been filled with discussions of this “incorporation” doctrine, and even though the current dogma in the courts and the legal academy is that it was the intention of the authors of the 14th Amendment that it be recognized, Hamburger, in particular, makes it plain that this was not the belief prevalent at the time of the 14th Amendment’s passage. A number of American liberals and secularists vainly sought to pass an amendment expressly applying the text of the First Amendment against the states, and virtually everyone seems to have understood then that the 14th Amendment itself worked no alteration in this legal context. How, then, could Black and other justices assert that the 14th Amendment incorporated the First, and how did Jefferson’s “wall of separation,” originally intended to do no more than serve as a barrier between the federal government and the states, become a “high and impregnable” impediment to any state or local endorsement of the Holy?
Hamburger’s brilliant thesis is that the American effort at separation of Church and State has had more to do with the promotion of bigotry and intolerance than with the preservation of liberty. This is not likely to please the ACLU, People For the American Way, or other purported defenders of proper constitutional pieties. In an awesome display of learning in theology, Church history, constitutional doctrine, and 19th-century American culture, Hamburger reveals that, until many Americans felt threatened by the wave of mostly Catholic immigrants to urban areas in the late 19th century, no one really cared much about Jefferson’s wall. Once Catholics began to agitate for state funds to support their parochial schools and began actively to intervene in political contests, however, nativist Americans urged the principle of separation of Church and State not only to prevent funding for parochial schools but to prevent Catholic clerical and lay intervention in American civic life. Ham-burger does not note that there is an interesting parallel with what happened in England in the 17th century, when fear of papist contamination led English Protestant aristocrats to ease out the Catholic James II and replace him with the Protestant William of Orange.
There are differences between 17th-century England and 19th-century America, however, and Hamburger maintains that American fear of Catholicism had as much to do with preserving a Protestant cultural ethos as it did with a theological and political fear of Rome. Still, the similarities in the proffered concepts (Catholics as the unthinking slaves of the pope, the pope as Antichrist, etc.) are striking. And just as the Glorious Revolution reinforced the position of the established church in England, anti-Catholic animus in late-19th-century America was generally accompanied by efforts to preserve the study and reading of the Protestant Bible in public schools and to promote a recognition of the importance of Christianity to good government. Hamburger does acknowledge that some had begun to articulate what would become our secular assumptions with regard to the proper relationship between government and religion, but these amounted to a tiny and impotent minority. Indeed, Hamburger is even able to demonstrate that some late-19th-century Jewish leaders were as strongly anti-Catholic as the Protestants and were even sympathetic to the need to inculcate Protestant piety in the public schools. He also shows, however, that many Jews—especially members of the Reform movement—had begun, by the last quarter of the century, to embrace the same radical conception of the separation of Church and State that they would exhibit in the 20th century in contesting prayer in American schools and in otherwise seeking to make Christianity a private, rather than a public, creed.
In any event, what Hamburger’s data show beyond cavil is that separation of Church and State, in the form of constitutional doctrine, simply did not exist at the time of the passage of the 14th Amendment, nor for a couple of generations afterward. Protestant nativists invoked “separation” as a means to smother Catholic aspirations, but only fringe groups argued for a completely secular state. To drive this point home, Hamburger forcefully asserts that Justice Black’s reconstruction of Jefferson’s “wall” in Everson was probably as much a result of Black’s membership in the most notorious of American nativist organizations, the Ku Klux Klan, and of his virulent personal anti-Catholicism as it was of his understanding of constitutional law. Hamburger’s account of Black’s duplicity and unscrupulousness as a lawyer and as a justice is one of the most gripping, powerful, and potentially influential parts of his book and should be the subject of many seminars and colloquia in the years to come.
Justice Cardozo, as quoted by Dreisbach, said that “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Jefferson’s “wall,” which began as a slap at critics and a sop to allies, developed into the proposition that prayer at public-school football games and graduations must be prohibited because it is “psychologically coercive.” Justice Antonin Scalia, dissenting in the middle-school graduation case, lamented that the Supreme Court had departed from the wisdom of the Framers in their conviction that
nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily.
Scalia was right; so are Dreisbach and Hamburger when they maintain that, if the test of correct constitutional interpretation is the historical understanding at the time of the constitutional provision’s adoption, the “wall of separation” crumbles.
The popular appeal of the “wall” metaphor, anti-Catholicism, and nativist American attitudes generally, Hamburger argues, have led the Supreme Court to ignore the historical understanding of the First and 14th Amendments. Illegitimate in its departure from the original understanding, obtuse in its neglect of the human yearning for transcendence, and naive in its failure to recognize the impossibility of splitting our spiritual character away from our temporal one, the doctrine of separation spells trouble for the government that seeks to incorporate it into law.
[Thomas Jefferson and the Wall of Separation Between Church and State, by Daniel L. Dreisbach (New York and London: New York University Press) 304 pp., $42.00]
[Separation of Church and State, by Philip Hamburger (Cambridge, MA, and London: Harvard University Press) 560 pp., $49.95]
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