1
Introduction
The Creation of an American Metaphor
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
âFirst Amendment, U.S. Constitution (1791)
[Mr. Jeffersonâs reply to the Danbury Baptist Association] may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured.
âChief Justice Morrison Waite, Reynolds v. United States (1879)1
In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect âa wall of separation between church and State.â⊠That wall must be kept high and impregnable. We could not approve the slightest breach.
âJustice Hugo L. Black, Everson v. Board of Education (1947)2
On New Yearâs Day, 1802, President Thomas Jefferson penned a letter to the Danbury Baptist Association of Connecticut. In his written address, he used the celebrated âwall of separationâ metaphor to describe the First Amendment relationship between religion and civil government. Jefferson wrote, in sweeping, memorable phrases:
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 âmake no law respecting an establishment of religion, or prohibiting the free exercise thereof,â thus building a wall of separation between Church & State.3
The missive, he said, provided an opportunity to disseminate his views on the constitutional relationship between church and state and, in particular, to explain his reasons for refusing to issue presidential proclamations of days for public fasting and thanksgiving.4
The First Amendment religion clause states: âCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.â5 The âwall of separationâ metaphorically represents this constitutional provision. The Amendment, however, differs in significant respects from Jeffersonâs felicitous phrase. The former prohibits the creation of laws ârespecting an establishment of religionâ (excepting, perhaps, laws to protect religious exercise), thereby limiting civil government; the latter, more broadly, separates âchurchâ and âstate,â thereby restricting the actions of, and interactions between, both the church and the civil state. The First Amendmentâs laconic text imposes explicit restrictions on Congress only. A wall, by contrast, is a bilateral barrier, a structure of unambiguous demarcation that inhibits the movement of traffic from one side to the other. The separation principle, interpreted strictly, proscribes all admixtures of religion and politics, denies all governmental endorsement of and aid for institutional religion, and promotes a religion that is strictly voluntary and essentially private, personal, and nonpolitical. It inhibits religious intrusions on public life and politics as much as political intrusions on religion and the rights of conscience.6 Whether Jeffersonâs metaphor merely makes explicit that which is implicit in the constitutional arrangement or whether it exceedsâand, indeed, reconceptualizesâthe constitutional mandate has sustained a lively debate since the mid-twentieth century.
Occasionally, a figure of speech is thought to encapsulate so thoroughly an idea or concept that it passes into the language as the standard expression of that idea. Such is the case with the graphic phrase âwall of separation between church and state,â which for more than half a century has profoundly influenced church-state law, policy, and discourse. The metaphor is simple and concrete and appears to bring clarity to constitutional language that âis at best opaqueâ and enigmatic.7 Although nowhere to be found in the U.S. Constitution, the trope is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement. âIn the broad definition of the term,â according to one observer, âJeffersonâs phrase about the wall between church and state has become a proof text for the First Amendment.â8 Another commentator wrote:
[Jeffersonâs] words âa wall of separation between church and stateâ are not simply a metaphor of one private citizenâs language; they reflect accurately the intent of those most responsible for the First Amendment; and they came to reflect the majority will of the American people. The words âseparation of church and stateâ are an accurate and convenient shorthand meaning of the First Amendment itself; they represent a well-defined historical principle from the pen of one who in many official statements and actions helped to frame the authentic American tradition of political and religious liberty.9
Jeffersonâs architectural metaphor, in the course of time, has achieved virtual canonical status and become more familiar to the American people than the actual text of the First Amendment.10
More important, jurists have found the metaphor irresistible, adopting it not only as an organizing theme of church-state jurisprudence but also as a virtual rule of constitutional law. According to Leonard W. Levy, âhistory has made the wall of separation real. The wall is not just a metaphor. It has constitutional existence.â11 âThe metaphor of the âwall of separationâ between church and state,â another commentator observed,
has become an enduring element of First Amendment analysis. Resurrected from Jefferson by the Supreme Court in 1879, since 1947 the vision of the wall seems to have molded almost all attempts to analyze the First Amendmentâs control over the Governmentâs relationship to religion. Indeed, [Supreme] Court opinions, and scholarly analyses of those opinions, have relied on it so much that the âwall of separationâ has become more than a mere symbol or a basis for analysis; it is a rule of law.12
In 1879, the U.S. Supreme Court first referenced Jeffersonâs address to the Danbury Baptist Association. The Court concluded, following a lengthy excerpt from the letter, âComing as this does from an acknowledged leader of the advocates of the measure [i.e., the First Amendment], it [Jeffersonâs Danbury letter] may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured.â13
Nearly seven decades later, the Court ârediscoveredâ Jeffersonâs figurative language, elevating it to authoritative gloss on the First Amendment religion provisions. The âwallâ was the unifying theme of Justice Hugo L. Blackâs majority opinion in the landmark decision in Everson v. Board of Education (1947):
The âestablishment of religionâ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect âa wall of separation between church and State.â⊠That wall must be kept high and impregnable. We could not approve the slightest breach.14
Justice Blackâs gloss on the metaphor (and the Amendment) has come to dominate modern political and legal discourse, which is not surprising, because the metaphorâs current fame dates from its reemergence in Everson. In McCollum v. Board of Education (1948), the following term, Justice Black confirmed the extent to which the Court had constitutionalized the âwallâ metaphor: âThe majority in the Everson case, and the minority as shown by quotations from the dissenting views âŠ, agreed that the First Amendmentâs language, properly interpreted, had erected a wall of separation between Church and State.â15 In the years since Everson and McCollum, federal and state courts have referenced Jeffersonâs celebrated phrase almost too many times to count. Remarkably, the Jeffersonian metaphor has eclipsed and supplanted constitutional text in the minds of many jurists, scholars, and the American public.
Although the Danbury letter was published in partisan newspapers shortly after it was written, the âwallâ metaphor never attained great currency in the nineteenth and early twentieth centuries. Indeed, by the early twentieth century, it apparently had slipped into obscurity in both public and private papers. And there it would likely have remained had it not been rediscovered by Justice Black in Everson. The Everson ruling marked the metaphorâs entrance into public consciousness; shortly thereafter, its use proliferated in legal, political, and popular discourse.16
The pervasive influence of the âwallâ in law, policy, and discourse raises some important questions. For example, is the âwallâ metaphor an accurate and adequate representation of the First Amendment? Does the âwall,â in short, illuminate or obfuscate the meaning of the First Amendment? Did Jefferson intend that his metaphor would encapsulate a universal, prudential, and/or constitutional rule of American church-state relations? How have legal, political, and popular constructions of the metaphor evolved over two centuries? Is the âwall of separationâ referenced by courts and commentators and attributed to Jefferson the same âwallâ constructed by Jefferson in 1802? Is it appropriate, as a matter of constitutional law, for a metaphor from a presidential missive to supplement or supplant constitutional text? These are among the questions addressed in this study.
No phrase in American letters has more profoundly influenced discourse and policy on church-state relations than Jeffersonâs âwall of separation.â17 The bibliography at the end of this volume confirms that enough books and articles to fill a small library have been written on the âwallâ metaphor. So why another book on the subject? Because, prior to my 1997 article in the Journal of Church and State, very little had been written that examined in detail the text and political context of the Danbury letter, which contains Jeffersonâs trope.18 Instead, most books and articles on the âwallâ simply presume that the First Amendment erected a âwall of separationâ and make that presumption their point of departure for discussing the Supreme Courtâs church-state jurisprudence. The extensive and continuing reliance of courts on the metaphor invites further scrutiny of Jeffersonâs imaginative phrase. Simply stated, insofar as the judiciary appropriated Jeffersonâs metaphor and then misconstrued that metaphor in its application, as critics allege, church-state jurisprudence may lack analytical merit and legitimacy.
This book recounts the story of Jeffersonâs correspondence with the Danbury Baptist Association; reflects on Jeffersonâs deliberations in framing his famous missive; tracks the entrance of the celebrated âwall of separationâ into political and legal discourse; and investigates the metaphorâs origins, uses, and interpretations. The book compiles the correspondence between Jefferson and the Connecticut Baptists, as well as other letters that informed Jeffersonâs famous pronouncement. This volume is a sourcebook for jurists and scholars who use Jeffersonâs metaphor.
The New England Baptists and their struggle for religious liberty are introduced in chapter 2. This chapter also briefly describes the political climate that surrounded the rancorous presidential campaign of 1800 and that prevailed in the early days of Jeffersonâs first administration. Chapter 3 compiles and reproduces for the first time complete and reliable transcripts of the Danbury Baptist Associationâs address to Jefferson, the preliminary and final drafts of Jeffersonâs response, and correspondence between Jefferson and cabinet advisers regarding the presidentâs reply. Chapter 4 explores Jeffersonâs understanding of the metaphor and sets forth a âjurisdictionalâ (or structural) interpretation of the âwallâ consistent with the text of the Danbury letter and the context in which it was written. Although Jefferson is often credited with coining the metaphor, chapter 5 discusses references to a âwall of separationâ in a church-state context made prior to Jeffersonâs use of the phrase. Attention is focused on references to a âwall of separationâ by Richard Hooker, the sixteenth-century Anglican theologian; Roger Williams, the seventeenth-century colonial champion of religious liberty; and James Burgh, an eighteenth-century British political writer widely read in revolutionary America. From the late eighteenth century to the present, numerous metaphorical barriers have been proposed to safeguard religious liberty. Chapter 6 identifies and discusses various alternatives to, and refinements of, the âwall.â Chapter 7 briefly tracks the entrance of the metaphor into political and legal discourse and surveys judicial comment on the U.S. Supreme Courtâs reliance on the âwallâ as the theme of many church-state pronouncements. The eighth and final chapter discusses the uses of metaphors in the law and reflects on the continuing utility and appeal of Jeffersonâs metaphor to participants in church-state debate.
This book is about a metaphorâa metaphor that has shaped American church-state law, politics, and discourse. The book is primarily descriptive, and it seeks to avoid the polemical and ideological cant that polarizes students of church and state. It does not comprehensively examine Thomas Jeffersonâs church-state views. Nor does it, more generally, study the concept of separation of church and state, American church-state relationships, or church-state jurisprudence, although the book touches on all these topics. Jeffersonâs views on church-state relations have been more closely scrutinized than those of any other American, and the leading scholarship on this subject is referenced in this volumeâs notes and bibliography. Separation of church and state as a political, theological, and legal concept and church-state relationships in the American experience also have been the subject of much scholarship over the course of two centuries. Anson Phelps Stokesâs magisterial Church and State in the United States, 3 vols....