-By Warner Todd Huston
Note: I wrote this in 2008, but it is so far back in the archives that it isn’t properly showing in searches, so I am updating it.
Secularists today have a catch phrase that they use like a club against religion in America. That club is named “the separation of church and state.”
So many Americans have heard the phrase that they think it is one actually written right into the Constitution of the United States itself. Those who are more learned on the subject realize it is not. Those who are learned on the subject also know that it wasn’t mentioned in any law, or even in the halls of Congress, until long after the Constitution was written. In fact, there was not much attention paid to the phrase at all until after Thomas Jefferson, the originator of the phrase, was long dead.
Not even the Supreme Court paid it much attention until the 1940s. So this “wall of separation” issue is not one that hails from the early Republic with the same meaning as it does today. Our Founders had very different ideas about religion and government, ideas that were not nearly as simple as the stark black or white assumptions of the activists of today.
The Danbury Letter
The man who initially conjured the “wall of separation” phrase, President Thomas Jefferson (1800-1808), wrote it in an 1802 letter to a congregation of Baptist churchmen from Danbury, Connecticut. Only elected president of the United States but two years previously, Jefferson was responding to a letter sent him by the Danbury church members who were attempting to get his support for their struggle against the state’s somewhat oppressive religious requirements for certain rights — not an unusual practice in the states at that time. While Jefferson’s letter only obliquely addressed the Baptist’s concerns, more importantly it addressed the Federal position on establishing a national religion. Jefferson’s reply, in reality, was focused on the Federal issue, not that of the states.
In his short letter, Jefferson said, “… 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 and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, …” (See full text HERE)
Jefferson used the words “act of the whole American people” and “supreme will of the nation” for a very specific reason. While he obliquely seemed to be supportive of the Baptist’s plight, he did not give them direct support for overturning Connecticut’s state laws just on his say-so. Jefferson restricted his response to the Federal (or National) position, distancing himself from being seen to talk badly about the state’s laws. After all, as president of the United States, Jefferson had no power to alter a state’s constitution. Worse, should a letter he had written attacking a state’s constitution on an issue that was commonly extent in most of the Union become public, it could lead to a messy backlash that Jefferson did not need after the tumultuous and vicious presidential campaign of 1800.
Lastly, it should be remembered that Jefferson already had an unsavory reputation as an irreligious, heathen, a charge that was leveled against him repeatedly during the contentious 1800 campaign. Jefferson knew that every state in the Union (except Rhode Island) had a state sponsored religion since before the days of the Revolution, so by relegating himself to the settled national issue, he could not easily be accused of more atheist sentiments.
So, what does this mean to the issue of “separation of church and state” for today’s argument? It means that Jefferson’s letter should not be used by anti-religionists to support their position. Jefferson was clearly saying that religious issues were in the various state’s area of influence and control, not his as leader of the Federal Union. Unfortunately, today’s anti-religionists who wish to eliminate religion in the states as well as the Federal Union illegitimately use Jefferson’s words in their cause misconstruing Jefferson to say that all religion should be eliminated from government.
A true reading of Jefferson’s letter would tend to undermine the secularists who imagine that Jefferson was saying in the Danbury letter that all government should be separated from religion because he made no effort to say that the states should emulate the Federal government’s separation. After all, an “act of the whole American people” refers to those acts made concerning rules for the Federal Union, not those of the individual states.
In summation, Jefferson was addressing the separation of powers as much as he was of that of the Federal government and religion.
Jefferson’s Danbury letter, of course, was just one man’s opinion and, to be sure, it was one made more to get someone off his back with a short address than one of any detailed discussion of the issue. But he was far from the only Founder to have considered the issue of religion, society, and the state.
Other Founders
Their own personal religious practices aside, the Founders had an intense desire to see religion observed by the people. But where the Founder’s brilliance lay was in an insistence for freedom of religious expression, not in a squelching of same. According to James Madison, who addressed that subject many times, “among the features peculiar to the political system of the United States, is the perfect equality of rights which it secures to every religious sect.”
Of course, Madison was quite explicit in his thoughts that government should not operate or directly run a religion, yet he was equally as insistent that religious observance was a very important aspect of republicanism. To expect that the same man who would say such things would advocate a total elimination of public religion just doesn’t logically follow.
The Founders were as worried about virtue in the people as they were for their liberty and freedom as it turns out. In fact, they generally felt that religion was inseparable from public virtue, freedom and liberty. Here are just a few more quotes as grist for the mill for discussion.
Benjamin Rush
“I proceed…to enquire what mode of education we shall adopt so as to secure to the state all the advantages that are to be derived from the proper instruction of youth; and here I beg leave to remark, that the only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.”
George Washington
“Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”
And one more from James Madison:
“The belief in a God All Powerful wise and good, is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters and capacities impressed with it.”
With these few quotes (and there are many, many others) we see that the Founders desired the people to be led by religion. And, to be sure, the religion they assumed would play a leading role were the various forms of Christianity as existing in the Union at the time. So, we can easily establish that the Founders weren’t anti-religion, that they desired religions to be included in American life, and that Christianity served as a necessary foundation upon which to build a civil society.
But what did it all really mean for the Constitution? For a fuller discussion of the issue we can turn to Supreme Court Associate Justice Joseph Story’s writings.
Associate Justice Joseph Story
Justice Story was born in 1779 and became an Associate Justice of the Supreme Court in 1811 after having previously been a distinguished politician from Massachusetts. He figured prominently later in the era of the John Marshall Court as the Supreme Court solidified its position as presumed final arbiter of Constitutionality of laws passed by Congress.
One of the things he is remembered for the most by posterity is his exposition on the Constitution. Story’s “Commentaries on the Constitution of the United States” (3 vols., 1833) is still widely looked upon as the standard treatise on the subject of the Constitution of the United States. This treatment has been standard reading for law students, Constitutional historians, and students of civil government for 173 years and has served as a chief reference in some of the best schools for generations. There is no question that Story’s work is considered authoritative and widely accepted.
It should be noted that Story’s able commentaries on the Constitution were published in 1833 and were used as an authoritative textbook for study of the law and the Constitution all the way until our own times. As a measuring stick, it should also be noted that the last of the Founders, James Madison, didn’t pass away until 1836, three years after the publishing of Story’s work. So, Story’s era was still intimately connected to that of those who framed the Constitution and accepted by some from that generation (and if anyone would have been in a position to object it would have been Madison. He did not, however). Story’s commentaries were not viewed as revolutionary, or radical in any way.
1st Amendment to the Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
To set the stage, we must first ascertain what Mr. Story and the Founders before him envisioned what the role should be of religion in society and government both. We must review more than their thoughts on the place of religion and the Constitution to get an informed idea of what the Founders figured. Should we concern ourselves solely with their thoughts on religion and the Federal Constitution we give ourselves an incomplete picture of their thoughts on the matter and this tends to horribly skew the debate in too simplistic a direction.
That in mind we find that Mr. Justice Story went on at great length about the place of religion in government, arriving at a point far from saying religion had no right or a proper place to intermingle with government.
In one of his first few paragraphs on the First Amendment and the religion clause therein, Story said, “Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.”
This straight forward paragraph reveals that Story was hardly a man who imagined government and religion should be alienated one from the other! Story began with the basic assumption that the Christian religion was indispensable to a good society, echoing the thoughts of the Founders.
“…the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; ’97 these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.”
After setting this basic groundwork, Story went on a brief review of the history of religion in the colonies and young states as it directly affects the Constitution and the American system — turning to history as the authors of the Federalist Papers did in their own exposition on the Constitution.
In so doing, he observes that every state had a state sponsored religion.
“In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty.”
This all led Story to the conclusion that Christianity was never imagined to be detrimental to the health of the state or Federal government.
“Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”
Story was not insensible to religious oppression, of course, and his next several sections dealt with the religious oppressions of western history up to the time of the Founding of the country. Again, history was his guide.
With his historical investigations revealing the all too common religious oppressions by past governments concluded, Story assured his students that the issue of religion belonged properly with the states where the people had the most ability to affect it — As did the Founders before him.
“Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions…”
Conclusion
In the final analysis, Story observed no stark separation of church and state, but a practice of delegating a regulation of religion that rested with the various states. There was no expectation by the Founders or any language placed in the Constitution whereby religion would be banished from the public sphere. So this mythical “wall of separation” does not really exist but in the minds of later day anti-religionists.
The reality of the Founder’s intent for the roles of government and religion were far more nuanced and complicated than modern religion banners pretend. Unfortunately, they are presenting an incorrect picture of history and Constitutional law that is damaging the system that the Founders created and materially altering our culture for the worse.
In closing, I’d like to quote one more Founder, Elias Boudinot, delegate from New Jersey to the Continental Congress from 1777 to 1778, and 1781 to 1784. Then President of the Continental Congress in 1783.
“Our country should be preserved from the dreadful evil of becoming enemies to the religion of the Gospel, which I have no doubt, but would be the introduction of the dissolution of government and the bonds of civil society.”
Religion was not something the Founders necessarily feared and wanted distanced from society and government, but one that must be closely held and carefully regulated for the health of both society and government. Unfortunately, anti-religionists today forget that our nation was based on and intimately connected with, religious freedom — freedom of religion, not freedom from religion.
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This essay also appeared in the college textbook Atheism, Opposing Viewpoints published by Gale in 2009.
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“The only end of writing is to enable the reader better to enjoy life, or better to endure it.”
–Samuel Johnson
Warner Todd Huston is a Chicago based freelance writer. He has been writing opinion editorials and social criticism since early 2001 and before that he wrote articles on U.S. history for several small American magazines. His political columns are featured on many websites such as Andrew Breitbart’s BigGovernment.com, BigHollywood.com, and BigJournalism.com, as well as RightWingNews.com, RightPundits.com, CanadaFreePress.com, StoptheACLU.com, AmericanDaily.com, among many, many others. Mr. Huston is also endlessly amused that one of his articles formed the basis of an article in Germany’s Der Spiegel Magazine in 2008.
For a full bio, please CLICK HERE.
Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
During his presidency, Madison also vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. He pocket vetoed a third bill that would have exempted from import duties plates to print Bibles. Separation of church and state is not a recent invention of the courts.
Nor can Jefferson’s letter to the Danbury Baptists be discounted as facilely as supposing that courts and commentators have mistakenly read the letter to state that religion should be eliminated from all government, federal and state. Rather, courts and commentators have well understood, as you observe, that Jefferson spoke of the Constitution’s separation of religion from the federal government. That, though, hardly renders Jefferson’s confirmation of the intent of Constitution immaterial, as you suppose, to the modern issue whether state government’s too are separated from religion. While the original Constitution and First Amendment limited only the federal government in this regard, the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights’ constraints to state and local governments.
While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such as you note regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did. There is no reason to suppose, as you suggest, that the founders would not separate government from religion unless they were anti-religious.
It is instructive to recall that the Constitution’s separation of church and state reflected, at the federal level, a “disestablishment” political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term “antidisestablishmentarianism,” which amused some of us as kids.) Jefferson looked favorably on this movement, stating in his letter to the Danbury Baptists that “[a]dhering to this expression of the supreme will of the nation in behalf of the rights of conscience [i.e., the First Amendment], I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” It is worth noting, as well, that this disestablishment movement largely coincided with another movement, the Great Awakening. The people of the time saw the trend to separation of church and state as a boon, not a burden, to religion.
This sentiment was recorded by a famous observer of the American experiment: “On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point.” Alexis de Tocqueville, Democracy in America (1835).
Reliance on Story’s comments in his Commentaries is problematic to say the least. First, note that he offers conflicting ideas. In passages preceding those you quoted, he says this about the no-religious-test clause of the Constitution: “This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretense of any alliance between church and state in the national government.” He goes on to explain the aim was to cut off any alliance between government and any religion, Christian or other: “The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own. . . . The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right Of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom the history of the Parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests. . . . With one quotation more from [Blackstone], exemplifying the nature and objects of the English test laws, this subject may be dismissed. ‘In order the better to secure the established church against perils from non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected, called the corporation and test-acts. . . .’ It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.” Story then turned to the amendments and offered the seemingly contrary views you quoted.
Second, perhaps in all his comments but at least in those concerning the First Amendment, Story appears to express his personal views rather than some conclusion drawn from evidence. He offers no evidence of the framers’ intent in this regard (failing even to acknowledge that Madison had by then already vetoed two bills based on an understanding of the First Amendment contrary to Story’s), and instead resorts to his personal opinion: “The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of; rewards and punishments; the cultivation of all, the personal, social, and benevolent virtues;– these never Can be a matter of indifference in any well ordered community it is, indeed difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for; those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects.” (Moreover, that he was wrong in supposing this “impossible” is evidenced by the fact that hardly all devout founders shared this idea.)
Third, (as should be especially appreciated by modern show-me-the-words-separation-of-church-and-state literalists), he entirely fails to explain how he reads the words “Congress shall make no law respecting an establishment of religion” to mean only “to exclude all rivalry among Christian sects” and “Christianity ought to receive encouragements from the State.”
While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as Story notes, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
dougindeap, you could have at least noted where you cut and pasted that reply from. You sure as heck didn’t write it that quick after I posted this article!!
Warner,
You’re right, of course, that I can’t write that much that quickly. I wrote a bit and cobbled the rest together from various items I’ve written over the years.