Thomas Jefferson and the Wall of Separation Between Church and State & Separation of Church and State.

AuthorWitte, John, Jr.

THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE. By Daniel L. Dreisbach. New York and London: New York University Press. 2002. Pp. x, 283. $42.

SEPARATION OF CHURCH AND STATE. By Philip Hamburger. Cambridge and London: Harvard University Press. 2002. Pp. xiii, 514. $49.95.

  1. INTRODUCTION

    "The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy," Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. (1) "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform ... unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." (2) If we persist in this experiment, Justice Jackson warned his brethren, "we are likely to make the legal 'wall of separation between church and state' as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded." (3)

    While a majority of the United States Supreme Court embarked on a four-decade project of building this "serpentine wall," (4) Justice Jackson took little further part in the effort. He continued to regard the separation of church and state as essential to the protection of religious liberty, along with the freedoms of conscience, (5) exercise, and speech. (6) But he had no patience with unilateral or extreme applications of any of these First Amendment principles, (7) not least the principle of separation of church and state. Imprudent application of this latter principle, he wrote, would draw the Court into "passionate dialectics" about "nonessential details" that were often better left to state and local governments to resolve. (8) In his last years on the bench, Jackson thus led the Court in a case that denied standing to a party who argued that religious instruction in a public school violated the separation of church and state. (9) He was the sole dissenter in a church property dispute case, where the Court read the principle of separation to require a state to defer to the internal religious law of the disputants rather than apply its own state laws. (10) He dissented again from the Court's decision to uphold a public school program that gave students release time to participate in religious events off site. (11) Arguing that this was precisely the kind of case where the principle of separation did apply, he complained: "The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected." (12)

    For all his growing misgivings about separationism, however, even this bold dissenter on the Court, (13) well trained in legal history, (14) never once questioned the historical foundation or constitutional imperative of strict separationism. In Everson v. Board of Education, (15) the Supreme Court for the first time applied the First Amendment disestablishment guarantee to the states. Justice Black, Jackson's nemesis, (16) wrote for the Everson majority. After a lengthy historical recitation, Black quoted Thomas Jefferson's famous 1802 Letter to the Danbury Baptist Association as dispositive evidence that the "First Amendment has erected a wall of separation between church and state" that "must be kept high and impregnable." (17) Though Jackson dissented from the Everson holding, he accepted the Court's account of the history and meaning of the First Amendment. (18) Jackson was concerned about the rhetorical "undertones" of "advocating complete and uncompromising separation of Church from state." (19) He was not concerned about the historical underpinnings of separationism itself. Indeed, Jackson thought his views to be in full accord with the intent of the founders--not least his hero President Thomas Jefferson. (20)

    Justice Jackson might well have come to a different opinion had he enjoyed the luxury of reading the two exquisite books here under review. He would have learned that the history of separationism was far more "serpentine" than the straightforward history lesson of Everson had led him to believe. And he would have learned that the wall-of-separation metaphor was itself potentially "serpentine"--now in the sense of the ancient serpent in the garden of Eden who offered access to enduring wisdom by means of a seductively simple formula. (21) "Metaphors in law are to be narrowly watched," Benjamin Cardozo had warned in 1926, "for starting as devices to liberate thought, they end often by enslaving it." (22) So it has been with the metaphor of a wall of separation. (23) What started as one of several useful principles of religious liberty eventually became a mechanical test (24) that courts applied bluntly, even slavishly, in a whole series of cases. What started as one of many images (25) of a budding new national law of religious liberty, became for many the mandate and measure of the First Amendment itself.

    While the United States Supreme Court has, of late, abandoned much of its earlier separationism, (26) and overruled some of its harshest applications in earlier cases, (27) the wall-of-separation metaphor has lived on in popular imagination as the salutary source and summary of American religious liberty (Hamburger, pp. 1-8; Dreisbach, pp. 1-8, 107-28). Even popular imagination might change, if the findings of Professors Dreisbach and Hamburger are taken seriously. (28)

  2. ENTER HAMBURGER AND DREISBACH

    Between the two of them, Daniel Dreisbach (29) and Philip Hamburger (30) tell much of the American history of the (wall of) separation of church and state in its genesis, exodus, and deuteronomy--(1) its origins in seventeenth- and eighteenth-century writings; (2) its migration and manipulation in nineteenth- and early twentieth-century American lore and law; and (3) its second legal life (its "deuteronomos") in Everson and its immediate progeny.

    Philip Hamburger's Separation of Church and State is a riveting and recondite intellectual history of American separationism. The heart of the book analyzes developments from Thomas Jefferson's 1802 Danbury Baptist Letter to Justice Black's opinion in the 1947 Everson case (Hamburger, pp. 111-492). While Hamburger inevitably covers some of the same ground broken earlier by Anson Stokes, (31) Leo Pfeffer, (32) Leonard Levy, (33) and others, (34) his book breaks much new ground and blows much thick dust from long-forgotten archives. Particularly novel and valuable is his treatment of separationism in the last two-thirds of the nineteenth century, and his detailed analysis of the shifting and sometimes overlapping views of separationism among American Protestants, Unitarians, the National Liberal League, the Ku Klux Klan, and sundry other groups (Hamburger, pp. 193-390). Hamburger's volume brings to light and life scores of long-obscure pamphlets, speeches, and sermons on separationism, many of which have been known only to denominational specialists and church historians.

    Hamburger's writing throughout is lean, learned, and lively. Convenient forecasts and summaries open and close each of the four major sections of the book--"Late Eighteenth-Century Religious Liberty," "Early Nineteenth-Century Republicanism," "Mid-Nineteenth-Century Americanism," and "Late Nineteenth- and Early Twentieth-Century Constitutional Law." Crisp summaries again open and close most of the fourteen meaty chapters. A detailed index allows novices and experts alike to mine the book with profit. While I have ample reservations about parts of Professor Hamburger's analysis, (35) I believe his book will rightly become the standard intellectual history of nineteenth-century American separationism for years to come.

    While Hamburger pans with a binocular to paint his panorama, Dreisbach probes with an x-ray machine to interpret his texts. Quite literally. In 1998, James Hutson, chief archivist at the Library of Congress, had sent the original manuscript of Jefferson's 1802 Letter to the Danbury Baptists, with all of its scratch outs and penned over sections, to the FBI laboratory. Using x-rays and other techniques, the FBI uncovered the full original letter with all its stops and starts, thoughts and rethoughts spelled out. (36) For Dreisbach, this is precisely the sort of evidence that is needed to understand what Thomas Jefferson intended by his reference to a "wall of separation between church and state." Dreisbach's analysis ripples out from this core 1802 text--reaching back to colonial and earlier European formulations of separationism (Dreisbach, pp. 71-82), and forward to selected nineteenth-and twentieth-century interpretations, including those of the United States Supreme Court (Dreisbach, pp. 95-128).

    This book is vintage Dreisbach. (37) A neatly trimmed and tightly written text of 128 pages is built on a scholarly foundation of even greater thickness: eighty-nine pages of dense notes, twenty-four pages of bibliography, and nine appendices with critical editions of Jefferson's letters to and about the Danbury Baptists as well as other key documents on religious liberty that Jefferson wrote as Virginia's Governor and as America's President and aged savant. Any-one studying Jefferson's views of separation would be wise to use Dreisbach's primary texts and to ponder his interpretation of them. Anyone studying the history of separation in America will find all manner of literary leads in Dreisbach's hefty bibliography and detailed notes (Dreisbach, pp. 155-269). This is a book that can be read in an evening, but pondered for a career.

    These two books inevitably overlap somewhat in topics and texts covered, but they are by no means duplicative. While the two authors cite each other regularly and favorably, (38) their interpretations differ markedly at critical points.

    First, Hamburger views Jefferson's...

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