kitchen table math, the sequel: Jefferson's "wall of separation"

Saturday, September 29, 2012

Jefferson's "wall of separation"

from Rehnquist's Dissent, in Wallace vs. Jaffree:
Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16 (1947), summarized its exegesis of Establishment Clause doctrine thus:
"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.' Reynolds v. United States, [98 U. S. 145, 164 (1879)].
This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole Americanpeople 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."  Writings of Thomas Jefferson 113 (H. Washington ed. 1861).

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did playas large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the' Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State."
After this opening, Rehnquist reviews the process by which the Establishment Clause came to be included in the Bill of Rights. Rehnquist shows that the notion of state neutrality toward religion did not come up in the deliberations of the First Congress.

Ed says that if you read our friend Ruth Bloch's Visionary Republic: Millennial Themes in American Thought, 1756-1800, you understand that it would not have been possible for the founders to have intended that the state be neutral on the subject of religion. The founders lived in a religious world. Secularism had yet to be invented, and neutrality did not exist. In fact, the Representatives spent time considering how to write an Establishment Clause so that it did not interfere with the state-established churches in New England, which were then "the rule rather than the exception" according to Rehnquist.

My favorite bit of historical evidence from Rehnquist's dissent is the fact that on the very day Madison introduced his proposed language for the Establishment clause, the First Congress reenacted the Northwest Ordinance. The Northwest Ordinance provided that:
"[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

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