Dreisback Lectures on Misuse of the Wall Metaphor in Court Jurisprudence
Posted Mar 1, 2016
On Thursday, Feb. 18, American University Professor Daniel Dreisbach spoke on “How Thomas Jefferson’s ‘Wall of Separation’ Redefined Religion’s Place in American Public Life.” Dresibach is a nationally recognized expert who has authored or edited ten books, including Thomas Jefferson and the Wall of Separation between Church and State (New York University Press, 2002), Faith and the Founders of the American Republic (Oxford University Press, 2014)(co-editor), and The Sacred Rights of Conscience (Liberty Fund, 2009)(co-editor).
Dreisbach began by noting that neither separation of church and state and wall of separation are ever mentioned in the Constitution yet they are generally accepted as the Founder’s idea of religion’s role in American public life. Thus, his talk addressed where this phrase came from and its influence. The first time that the wall of separation rose to prominence was in the Everson v Board of Education (1947). Justice Hugo Black, writing for the majority, wrote the establishment clause erects “a wall of separation between Church and state” and that wall must be kept high and impregnable. From that point on, the metaphor has been used to justify banning school prayer, keeping religious symbols out of the public square, and preventing religious groups from providing government benefits.
Black, however, got this idea from Thomas Jefferson’s Letter to Danbury Baptist Church which led Dreisbach to examine Jefferson’s ideas on religious liberty. Going back to the 1800 presidential election, the Federalist argued that Jefferson was an atheist because of his support for the French Revolution believing that Jefferson might remove religion from public life as French revolutionaries attempted to do. Yet, Jefferson was a major defender of religious liberty in his life which led to the letter from the Danbury Baptist Association. Baptists were one of the few groups in the northern part of the nation who actually supported Jefferson and they did primarily as a result of his support for religious liberty. Their letter celebrated his victory and devotion of religious liberty. It is in Jefferson’s reply that he mentioned a wall of separation between church and state. And he wrote this knowing that his letter would be circulated to others and so he was careful in writing this knowing that a well written letter could build more support for him.
Since drafts of his letter to Danbury Baptists are available, the letter has been studied in many ways. In fact, the FBI looked at drafts of the letter to see what he really wrote to understand it better. From the context of the letter and the edits in the drafts, we can see that the wall Jefferson created in his letter is very different from the wall that the Supreme Court has created.
To understand his perspective, we need to see that Jefferson, throughout his career, pursued policies incompatible with a “high and impregnable” wall. For example, Jefferson supported federal money for churches and missionaries. In reality, Jefferson say the wall as a matter of federalism. He believed that the establishment clause erected a wall between the national government and state government on matters pertaining to religion. The goal was to prevent the national government from creating a national church. This idea did not extend to state governments. This principle affirms federalism and not secularism as many have interpreted it. Jefferson put the national government on one side of the wall and state governments and churches on the other. The modern wall is placed between government (federal and state) and churches.
If you look at the Danbury letter in context, one sees it as an explanation for why he refused to issue religious proclamations as president, especially since it was contrary to his past actions. As a Virginia state legislator, Jefferson wrote a bill for days of fasting and thanksgiving. As governor, he issues religious proclamations. But as president, he refused to issue religious proclamations. In his second inaugural, he explains that free exercise of religion is independent of the national government, implying it is ok for states. Furthermore in a letter to Rev. Samuel Miller, he said the president had no power to prescribe religious exercises by the national governments. Instead, it must rests with the state. These letters and actions support the federalism argument.
Overall, Jefferson argues for equal access for all religion. However, the wall metaphor goes too far and misconceptualizes important First Amendment principles in several ways. So how does the wall redefine the First Amendment. First, Jefferson emphasizes separation while First Amendment speaks in terms on nonestablishment and free exercise for everyone. Second, a wall is a bilateral barrier that inhibits the activities of both the civil government and religion. This view is mistaken because the establishment clause and free exercise clause is designed to protect religion from governmental intrusion. The Amendment says “Congress shall make no law” which does not mean that government needs to be protected from religion but rather religion needs to be protected from government determining what religion can and should do. Another way to look at this is to ask whether the First Amendment is designed to protect government from the press, free speech, assembly, etc. or are those rights meant to protect the citizenry from the government? Since it is clearly the latter, this interpretation should apply to the establishment clause. Third, separation leads civil government to specifiy the legitimate jurisdictions of both the civil state and the church. This moves the focus from restriction on government to empowering government to say what the church can and cannot do.
This idea would be very foreign to our Founders because they believed that a republic requires a disciplined citizenry. To provide a disciplined citizenry, you either needed a strong government or religion to provide a moral compass. Clearly, the Founders did not want a strong government as it was the primary reason for the revolution. Instead, you can see Founders like Franklin talking about having “a republic – if you can keep it.” The principle is that the success of the nation depended upon the virtue of its citizens. Furthermore, you can see this in George Washington’s Farewell Address where he said, “Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports.”
From this information, it is clear that the modern conception of a wall is contrary to the Founder’s ideals. Unfortunately, the wall metaphor is stuck in the American conscience and is used to prevent religious people from participating in public and using faith and reason as motives for debate. If we move back to the original understanding of the Founders regarding the Constitution, we would probably resolve more of our disagreements more amiably than we do now.
