A case study in metaphor as argument: a longitudinal analysis of the wall separating Church and State.

• Author: Voth, Ben

Something there is that doesn't love a wall.... Before I built a wall I'd ask to know What I was walling in or walling out, And to whom I was like to give offense Something there is that doesn't love a wall That wants it down....

He will not go behind his father's saying, And he likes having thought of it so well He says again, Good fences make good neighbors. (Frost 47-8)

Thus, history has made the wall of separation [between church and state] real. The wall is not just a metaphor. It has constitutional existence... Despite its detractors and despite its leaks, cracks, and its archways, the wall ranks as one of the mightiest monuments of constitutional government in this nation. Robert Frost notwithstanding, something there is that loves a wall. (Levy 250)

James Boyd White takes the field of law around the rhetorical turn when he observes:

To conceive of the law as a rhetorical and social system, as a way in which we use an inherited language to talk to each other and to maintain a community, suggests in a new way that the heart of law is what we always knew it was: the open hearing in which one point of view, one construction of language and reality, is tested against another. (104)

White's 1987 work, Heracles' Bow, emphasizes the intrinsically rhetorical and argumentative nature of law. The work offers a wide field of texts for review under the rhetorical perspective with an emphasis on deriving the manner by which language is "inherited" and "contributes" to the maintenance of a community. A subset of this broad agenda remains relatively obscure in argument and rhetorical studies: the importance of metaphor in legal argument. Haig Bosmajian makes some of the most significant forays into this realm without offering much insight into the inheritance of language noted by White. Within the academic study of argument, a well established literature exists suggesting that metaphors function in the role of argument (Ivie, "The Metaphor"; Parson and Kauffman; Lakoff and Johnson; Osborne; Richards; Ricoeur; Sontag; Bosmajian; Grassi; Jordan; Leff). Critiques of metaphors as paradigmatic blinders are increasingly common in the communication literature (Ivie, "Images," "Speaking"; Kauffman and Parson; Lakoff and Johnson; Osborne). Largely absent from the study of metaphor as argument is an explanation of the rhetorical means by which a metaphor rises and declines over time in legal discourse. This analysis endeavors to provide more detailed study of argument as metaphor in legal discourse by examining the lifespan of an unusually tenacious and lively metaphor known as "the wall separating Church and State." This example is chosen for two reasons: 1) the wall is an unusually prolonged, yet lively metaphor familiar in American public discourse, and 2) its usage can be meaningfully examined within a relatively self-contained interpretive community, the Supreme Court. These aspects of the metaphor facilitate assessment of the complex transitions of metaphor in the course of argumentation.

The wall metaphor is initiated, in a letter to Danbury Baptists in 1802, by Thomas Jefferson who proposed an interpretive frame for the First Amendment:

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 legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that the act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibition the free exercise thereof," thus building a wall of separation between Church and State. (281-82, emphasis added)

In so doing, he committed American policymakers to the task of separating sacred and secular realms. The difficulty of this distinction provides the exigence for the metaphor of wall separating Church and State. Its influence constitutes a contemporary paradigm of legal thought concerning America's religion clauses (Barton; Cahn; Howard; Jones; Levy; Miller; Perry; Tribe; Wood, Church). The attention to this paradigmatic metaphor is not diminished today. Dissenting Supreme Court justice Stevens argues in 1995 for "rebuilding the 'wall of separation between church and State' that Jefferson envisioned," (Stevens) while President Bill Clinton laments the Court's misinterpretation of the metaphor (Clinton). Despite the wall's apparent dominance in the interpretation of Church and State issues, reviews of its usages are limited (Bosmajian). The wall's function as an argument form invites critique and review of its extended history in American civic discourse.(1)

HOW THE WALL BECAME A PARADIGMATIC METAPHOR

A provocative question concerns the means by which this metaphor became influential in its role as an argument in American jurisprudence. Several substantive answers to this question can be given based upon examination of Court opinions utilizing the wall as an argument: 1) the prominence justices attached to the author of the metaphor, 2) the powerful dialectic found in historical narratives of Establishment problems, 3) the inherent ambiguity of distinguishing secular and religious subjects, 4) the presence of a principal advocate for the metaphor, and 5) the need for rhetorical consistency in Court doctrines.

From the beginning, justices gave considerable argumentative salience to the wall metaphor because its author, Jefferson, was presumed to be influential in the construction of the First Amendment (Black Everson; Stevens; Powell). Consequently, in considering the possible comparisons that might be drawn between the First Amendment and any another concept, Jefferson's historical and political position privileged his choice of metaphor. As an alternative, one might look at Roger Williams' metaphor of a "hedge," which is less compelling, in part because Williams had no role in the drafting of the First Amendment (Levy). After referencing the metaphor, the Reynolds Court of 1878 wrote: "Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured" (Waite 164). Later Supreme Court opinions would make similar references to Jefferson. In 1947, Justice Hugo Black, the principal advocate of the metaphor, gave explicit credit to Jefferson. Biographers have noted that in his personal library, Black had only one book on Madison compared to sixteen concerning Jefferson (Perry 61). The Reynolds and Everson courts gave favor to Jefferson's views over Madison's, though Madison is acknowledged as the actual author of the First Amendment. With Jefferson's influence accepted as authoritative in the drafting of religious freedom clauses, the Supreme Court gave his metaphor great weight and argumentative force in interpreting the First Amendment.

Jefferson's prominence alone is not enough to lift the wall metaphor to its exceptional position in the judicial hierarchy. The disposition of other Constitutional delegates and early American figures easily could restrain the clear acceptance of Jefferson's metaphor. A number of influential colonial figures (Patrick Henry, George Washington, John Jay, and Joseph Story [Barton 1992]) saw the United States as a synthesis of Christianity and civic power. This view is competitive with Jefferson's notion of a wall separating the government from religion. The contemporary Court viewed the metaphor as a critical resolution to powerful tensions rising out of the Establishment doctrine. Many intellectuals influenced by the Enlightenment saw the combination of ecclesiastical and political power as a principal scourge in the human quest for liberty. The vivid historical narratives of Black and Douglas increased the salience of the wall metaphor by tapping into this Enlightenment concern. The metaphor is hardier than a line, fence, or hedge. A wall is a sturdy structure designed to divide property or protect an area from invasion. The graphic dangers portrayed in the narratives of Black and Douglas motivated the acceptance of this stronger metaphor of wall. In Everson, Black used strong language to describe the conflict over religious freedom in colonial America. Black began the historical analysis with this description: "These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out.... "(Black, Everson 8). In this description, the problem that the First Amendment addressed is treated as quite serious: The American colonies, according to Black, were "filled with turmoil, civil strife, and persecutions, generated in large part by established sects.... "(Black, Everson 8). The tide of rising fear caused by religious establishment peaks 400 words later with, "the established faith... generating burning hatred against dissenters" (Black, Everson 10). Hatred is bad enough, but Black suggests that Established religion creates "burning" hatred- an image that might easily hearken hearers to Inquisition-like images. It is difficult to imagine a line holding back such overwhelming evil. Even a fence is weak in relation to the problems portrayed by Black. The wall metaphor is relatively inviting since it offers greater protection within the imagined scene. It is not surprising that Black ends the opinion with the suggestion that the wall be kept "high and impregnable." The argumentative force of the wall is a metaphor with the rhetorical strength requisite to fending off the described threat.

Historical narrative was used again in the highly controversial Engel v. Vitale decision of 1961 (Black) concerning school prayer. The narrative included stirring language about the "anguish, hardship and bitter strife" that came from struggles involving "zealous religious groups" (429). The suffering described in...