What the wall separates: a debate on Thomas Jefferson's "wall of separation" metaphor.

• Author: Dreisbach, Daniel L.
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

[A]greement, in the abstract, that the First Amendment was designed to erect a "wall of separation between church and State," does not preclude a clash of views as to what the wall separates.

Justice Felix Frankfurter(*)

No word or phrase is associated more closely by Americans with the topic of church-state relations than the "wall of separation between church and state." Although it is unclear why this metaphor has become so ingrained in the public mind, there is no doubt that Americans associate the image with one person: Thomas Jefferson. In an 1802 letter to the Danbury Baptist Association of Connecticut, President Jefferson used the celebrated "wall of separation" metaphor to define the First Amendment religious clauses. Jefferson wrote:

Believing with you 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, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that 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.(1) In the twentieth century, Jefferson's "wall" has profoundly influenced discourse and policy on church-state relations. It is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement. More important, the judiciary has embraced the metaphor, adopting it not only as an organizing theme of church-state analysis, but also as a virtual rule of constitutional law. The use of Jefferson's metaphor to define the First Amendment has not been without controversy.(2) The fact remains, however, that both the courts and the public at large have embraced the "wall" metaphor as the primary emblem of American church-state relations. Given the metaphor's influence, it is important to understand what Jefferson meant by it. To that end, this article presents two contrasting interpretations of Jefferson's "wall." John D. Whaley offers a broad separationist interpretation, in accord with recent judicial applications of the metaphor.(3) Daniel L. Dreisbach, to the contrary, argues that the principal function of the "wall" erected in the Danbury letter was to separate state and nation in matters pertaining to religion rather than to separate ecclesiastical authorities from all civil government.

Before presenting these arguments, we describe the circumstances that prompted Jefferson's correspondence with the Baptists, as well as the general historical context in which the Danbury letter was written. We then proceed to the argumentative sections. Whaley offers a separationist interpretation of Jefferson's "wall," followed by Dreisbach's argument for a jurisdictional interpretation. We conclude by offering some final observations on the use of metaphors in American law. In particular, we consider the promises and limitations of Jefferson's "wall" for informing discourse and shaping policy on church and state in the United States.

1. JEFFERSON, THE DANBURY BAPTISTS, AND AMERICA IN TRANSITION

   Jefferson was inaugurated the third president of the United States on March 4, 1801, following one of the most bitterly contested presidential elections in American history. Religion, in particular, emerged as a critical issue in the campaign. This was due in part to Jefferson's unorthodox religious views, but more generally to the fact that American religious culture was changing dramatically. The Second Great Awakening, in its early stages at the turn of the century, unleashed a proliferation of diverse denominations and dissenting sects that chafed under the old establishment order. This revival was only one part of the dynamic aftermath of the American Revolution, a period that would see the United States quickly become the most commercial, egalitarian, and evangelical nation in the world.(4) All forms of authority and hierarchy--social, political, economic and especially religious--were being re-thought. According to historian Gordon S. Wood, "the American Revolution accelerated the challenges to religious authority that had begun with the First Great Awakening. Just as people were taking over their governments, so, it was said, they should take over their churches. Christianity had to be republicanized."(5) This aversion to ecclesiastical authority encouraged the disestablishment of state churches throughout the former colonies, a trend that had begun in Jefferson's own Virginia. And, referring to the presidential election of 1800, John Adams admitted that an antiestablishment sentiment among these popular, voluntaristic sects "had an immense effect, and turned [voters] in such numbers as decided the election."(6)

   It was against this backdrop that on October 7, 1801, a committee of the Danbury Baptist Association wrote a congratulatory letter to Jefferson on his "appointment to the chief Magistracy in the United States."(7) Organized in 1790, the Danbury Baptist Association was an alliance of "twenty-six churches, most of them in the Connecticut Valley, stretching from Suffield to Middletown and including several as far west as Amenia, New York." By the turn of the century, "[t]hese twenty-six churches had a total of 1484 members but this number could be multiplied by five to include all the nominal adherents of these churches."(8) The Connecticut Baptists, who were a religious minority in a state where Congregationalism was the established church, supported Jefferson politically because of his unflagging commitment to religious liberty. The Danbury Baptists were also Republican partisans in a stronghold of the Federalist party. In short, they were a beleaguered religious and political minority subjected to discrimination by law in a state in which a Congregationalist-Federalist axis firmly controlled political life.

   In their address, the Danbury Baptists celebrated Jefferson's election, affirmed their devotion to religious liberty, and chastised those who had criticized the president "as an enemy of religion Law & good order." The Baptists wrote:

   Our Sentiments are uniformly on the side of Religious Liberty-That Religion is at all times and places a Matter between God and Individuals -- That no man ought to suffer in Name, person or effects on account of his religious Opinions-That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour: But Sir, our constitution of government is not specific. Our antient charter, together with the Laws made coincident therewith, were adopted as the Basis of our government, At the time of our revolution; and such had been our Laws & usages, & such still are; that Religion is considered as the first object of Legislation; & therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expence of such degrading acknowledgements, as are inconsistent with the rights of fre[e]men. It is not to be wondered at therefore; if those, who seek after power & gain under the pretence of government & Religion should reproach their fellow men -- should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ. Sir, we are sensible that the President of the united States, is not the national Legislator, & also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial Effect already, like the radiant beams of the Sun, will shine & prevail through all these States and all the world till Hierarchy and tyranny be destroyed from the Earth. Sir, when we reflect on your past services, and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America's God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have cal'd you to sustain and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people.(9) The issue of foremost importance to the Baptists was whether "religious privileges" were rightly regarded as "inalienable rights" or merely as "favors granted" and subject to withdrawal by the civil state. The Baptists believed that religious liberty was an inalienable right, and they were deeply troubled that the religious privileges of dissenters in Connecticut were treated as favors that could be granted or denied by the political authorities. They outlined the basic principles undergirding their claim to religious liberty. They described religion as an essentially private matter between an individual and his God. No citizen, they reasoned, ought to suffer civil disability on account of his religious opinions. The legitimate powers of civil government reach actions, but not opinions. These were principles Jefferson embraced, and he reaffirmed them in his reply to the Baptists.

   The surviving manuscripts reveal that Jefferson's reply was written with meticulous care and planned effect. The fact that a preliminary draft of the letter -- with scribbled amendments and a marginal note explaining one major change -- was retained in Jefferson's papers along with the version of the letter eventually sent indicates the significance the president attached to this statement.(10) Letters of courtesy, like the one sent by the Danbury Baptists, were not particularly welcomed by the president but neither were they...