Thomas Jefferson and the Wall of Separation between Church and State.

• Author: Smith, Douglas G.
• Position: Book Review

As the Supreme Court continues to reexamine its jurisprudence concerning the proper relationship between church and state, (1) scholars recently have taken a new look at the historical foundations of the Establishment Clause. In particular, more than one recent work has focused on the historical origins of the view that the First Amendment was designed to create a "wall of separation" between religion and government. (2) Daniel Dreisbach's book, Thomas Jefferson and the Wall of Separation between Church and State is a valuable contribution to that debate. (3)

Professor Dreisbach focuses on Thomas Jefferson's famous pronouncements concerning the "wall of separation," which have been the foundation for much of the Supreme Court's twentieth-century jurisprudence in this area. Dreisbach maintains that the traditional interpretation of Jefferson' s statements in his 1802 letter to the Danbury Baptist Association regarding the "separation" between church and state is flawed. According to Dreisbach, Jefferson was merely attempting to convey his view that there was a wall of separation between the federal government and religion. Under the Constitution, the federal government was delegated certain enumerated powers--the power to regulate in areas involving religious matters not being among them. However, according to Dreisbach, Jefferson did not contemplate any such separation between the various state governments and religion. Indeed, the separation principle, as Dreisbach notes, was understood by Jefferson to preclude the federal government from preempting the state governments' authority in matters of religion.

In bringing together a body of evidence regarding Jefferson's views, Dreisbach provides a valuable service in attempting to reconcile Jefferson's pronouncements with the prevailing views of the time. Commentators such as Philip Hamburger have recently suggested that Jefferson's statements regarding "separation" were out of step with contemporaneous understandings. Professor Dreisbach, however, takes the argument one step further, maintaining that the historical evidence suggests that Jefferson did not actually believe that the Establishment Clause set up any sort of rigid separation between religion and government. Rather, according to Dreisbach, Jefferson understood the separation principle to be based in federalism: "In short, the 'wall' Jefferson erected in the Danbury letter was between the federal government on one side and church authorities and state governments on the other." (4)

This review evaluates the evidence put forth by Dreisbach concerning Jefferson's views on the proper relationship between religion and government. Part I provides a brief overview of Dreisbach's work. Part II then discusses the relevance of Jefferson's views in the constitutional debate over the Establishment Clause. There are a variety of reasons one may properly conclude that Jefferson's views are of only limited relevance in determining the original meaning of the establishment provision. First, Jefferson's statements were all made years after ratification of the First Amendment. Second, the "separation" metaphor bears little relationship to the constitutional text, which forbids Congress from making any law "respecting an establishment of religion." Third, the separation metaphor, while attractive on its face, has not proven particularly useful in deciding actual cases. Fourth, given Professor Dreisbach's conclusion that even Jefferson viewed the First Amendment's prohibition as a federalism norm, his views are of only limited value in determining whether or to what extent the ratifiers of the Fourteenth Amendment decades later intended to impose upon the state governments some sort of restriction regarding the intermixture of religion and government. Finally, after considering these issues, Part III offers a brief conclusion.

1. THOMAS JEFFERSON'S RETROSPECTIVE

   As Professor Dreisbach observes, (5) beginning with its 1947 decision in Everson v. Board of Education, the Supreme Court relied heavily on the views expressed by Thomas Jefferson as a basis for its conclusion that the Establishment Clause was intended to erect a rigid wall of separation between religion and government. (6) In particular, the Court has frequently cited Jefferson's 1802 letter to the Danbury Baptist Association in which he indicated that the American people, in ratifying the Establishment Clause, were "building a wall of separation between Church & State." (7)

   In fact, the Court's reliance on Jefferson's views is so extensive that his pronouncements have become "a virtual rule of constitutional law." (8) The Court has assumed not only that Jefferson's views have some relevance to the proper interpretation of the First Amendment, but also that Jefferson's statements regarding "separation" of church and state connoted a rigid barrier between government and religion.

   The results of this reliance have been profound. In case after case, the Court has struck down various practices of the state governments that it has concluded evince a prohibited "entanglement" between religion and government. (9) While the boundaries of the prohibition have frequently shifted during the last fifty years, the framework the Court has used in analyzing such questions has been built on the separation metaphor.

   In examining the origins of the separation principle in Jefferson's writings, Dreisbach states that his purpose, in part, is to present a "sourcebook for jurists and scholars who use Jefferson's metaphor." (10) In the process, Professor Dreisbach outlines his own theory regarding Jefferson's views concerning the Establishment Clause. In putting Jefferson's letter to the Danbury Baptist Association in historical context, Dreisbach observes that then-President Jefferson sought to "explain his reasons for refusing to issue presidential proclamations of days for public fasting and thanksgiving." (11) The response to the Baptists' letter provided a useful opportunity for doing so and at the same time allowed Jefferson to put at ease the concerns of the "[m]any pious citizens" who "lamented his abandonment of this venerable tradition." (12)

   Dreisbach claims that Jefferson's comments regarding the separation of church and state were based on notions of federalism. (13) In coming to this conclusion, Dreisbach relies on certain language in Jefferson's letter that seems to support this view. In his rather brief response to the Danbury Baptist Association, Jefferson described the Establishment Clause as arising from the "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 & state." (14) Thus, the text of Jefferson's letter references only the federal government and the federal legislature, in particular, making his statements regarding a "wall of separation" potentially limited in scope.

   At the same time, however, other language in Jefferson's letter could be construed to suggest that his words were not so limited. Jefferson prefaced his comments regarding a "wall" of separation by stating that "religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, [and] that the legitimate powers of government reach actions only, & not opinions." (15) If one takes Jefferson at his word that the "legitimate powers of government" should not extend to matters of religious opinion, then neither the states nor the federal government should be legislating in matters of religion. Nonetheless, the only explicit textual reference Jefferson cites is the First Amendment's prohibition, which he firmly ties to congressional legislation. Moreover, Jefferson's words could be construed as merely laying out as a foundation a prescriptive principle that should be followed in setting up a government--one that Jefferson believed was textually embodied in the Constitution and applied to Congress, but one that might not necessarily be applied to the various state governments in their own constitutions. (16)

   However, Professor Dreisbach does not rely solely upon the language of a single letter. In support of his reading of Jefferson's views, Dreisbach compiles evidence from, among other things, Jefferson's contemporaneous writings, in which he more clearly expressed the view that the federal government in particular had no power over matters of religion. (17) Moreover, Dreisbach cites evidence that he claims shows that, in contrast Jefferson viewed the state governments as having such powers (18)--making the "separation" described by Jefferson in part a matter of the proper division of authority between the federal and state governments. (19)

   Similarly, Dreisbach claims that "[a] careful review of Jefferson's actions throughout his public career suggests that he believed, as a matter of federalism, that the national government had no jurisdiction in religious matters, whereas state governments were authorized to accommodate and even prescribe religious exercises." (20) Accordingly, through both words and deeds Jefferson seemed to recognize that the state governments could properly have some role in religious matters.

   Based on this historical analysis, Dreisbach concludes that Jefferson's "wall" of separation differs both in...