Separation of Church & State
Separation of Church & State?
Separation of Church & State?
“Separation of church and state” – most are surprised to discover that neither the Constitution nor the First Amendment contain these words. The First Amendment simply states:
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
The fact that the phrase “separation of church and state” appears in no founding document does not prevent many judicial and social activists from invoking that phrase as the basis for many public policy decisions.
Today, Thomas Jefferson (author of that phrase) is portrayed as the authority on the First Amendment:
“This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which . . .Jefferson played such [a] leading role …” (Everson v. Board of Education, 1947)
“Thomas Jefferson … a moving force behind the creation of the Bill of Rights …” (Legal brief submitted by “Americans United for the Separation of Church and State,” 1992)
This heavy reliance on Jefferson is a new and recent phenomenon; Jefferson was rarely cited by previous Courts – for reasons given by Jefferson himself.
In 1802, Dr. Joseph Priestley sent Jefferson a copy of an article he had written crediting Jefferson with much of the thought and work of the Constitution. Jefferson knew this was erroneous; on June 19, 1802, he wrote Dr. Priestley, instructing him to correct
“One passage in the paper you enclosed me must be corrected. It is the following, ‘And all say it was yourself more than any other individual, that planned and established it,’ i. e., the Constitution. I was in Europe when the Constitution was planned, and never saw it till after it was established.”
Jefferson was an ambassador in France when the Constitution was framed! He was not part of the Constitutional Convention; and due to the slow communication, the transmission of even a single suggestion from him to the American convention would have required weeks. Jefferson rightly disqualified himself.
Further, Jefferson is not an exclusive authority on the First Amendment. As a strong Anti-Federalist, he did want the Bill of Rights (the first ten Amendments to the Constitution); but, as he explained, he gave only vague directions concerning it:
“On receiving it [the Constitution while in France] I wrote strongly to Mr. Madison, urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the States of all rights not specifically granted to the Union. . . . This is all the hand I had in what related to the Constitution.”
A single letter from overseas broadly calling for a Bill of Rights was “all the hand [he] had in what related to the Constitution.” Jefferson not only disqualified himself as a Constitutional authority, he rightly disqualified himself as an authority on the drafted and ratified Bill of Rights.
Jefferson, an attorney, understood a legal truth: since he was not present when the Constitution or First Amendment was formed, what he offered after the fact was only “hearsay,” which courts do not allow when seeking truth:
- “Hearsay.” A term applied to … testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others. . . The very nature of [this] evidence shows its weakness, and, as such, hearsay evidence is generally inadmissible. Black’s Law Dictionary
- “Hearsay.” … is inadmissible because the statements thus made are not subjected to the ordinary tests required by law. Ballentine’s Law Dictionary
- “Hearsay.” Hearsay reports of a transaction, whether oral or written, are not admissible as evidence. Bouvier’s Law Dictionary
By legal definition, Jefferson’s view is “not admissible as evidence.” When establishing intent, it is important to produce admissible evidence – evidence from those who actually were there.
The now popular Jefferson metaphor “separation of church and state” first appeared in a letter written by him on January 1, 1802. Jefferson’s letter was not a public policy paper; it was both personal and private. If private letters are now to form the basis of national policy, then it is important to publish all of the letter and thus provide its context.
When earlier Supreme Courts did publish most of Jefferson’s letter rather than only eight words from it (“a wall of separation between church and state”), they arrived at conclusions very different from those reached by current Courts. Notice this usage of Jefferson’s letter by an earlier U. S. Supreme Court:
“[A]t the first session of the first Congress, [the First] amendment …. met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, – I contemplate with sovereign reference 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, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’ Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” (emphasis added) (Reynolds v. United States, 1878)
That Court then summarized Jefferson’s meaning of “separation of church and state”:
“[T]he rightful purposes of civil government are for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order. In th[is] … is found the true distinction between what properly belongs to the church and what to the State.”
According to Jefferson and the Court, the government could interfere with religion only when its actions were “subversive of good order” or “broke out into overt acts against peace and good order.”
That Court (and others, for example Common-wealth v. Nesbit, 1859) identified those actions into which – if perpetrated in the name of religion – the government had legitimate reason to intrude: human sacrifice, polygamy, bigamy, concubinage, incest, injury to children, advocation and promotion of immorality, etc. In orthodox religious practices – whether public prayer, the use of the Scriptures, etc. – the government was not to interfere. If Jefferson’s letter is to be used, let its content be clearly given – as in previous years.
Furthermore, while neither the context of Jefferson’s letter nor his public practices show him to be against religious practices in public, it is still important to note that Jefferson’s views on religion were not representative of the majority of the Founding Fathers – a fact made clear when he drafted the Declaration of Independence.
In his original draft, Jefferson acknowledged God only once: “the laws of nature and of nature’s God.” However, the committee to which the Declaration was assigned added an additional reference to God: “they are endowed by their Creator with certain unalienable rights.” The full Congress then added yet two more references to God: “appealing to the Supreme Judge of the World, for the rectitude of our intentions” and “with a firm reliance on the protection of divine Providence.”
Although the final version of the Declaration of Independence differed little from Jefferson’s original draft, three of the changes centered on God. Jefferson had acknowledged God only once; the other Founders wanted more and therefore added three additional references to God!
Even though Jefferson’s religious views did not represent the views of the majority of the other Founders, and even though his phrase “separation of church and state” was written eleven years after the First Amendment was ratified, and even though Jefferson was not one of the fifty-five participants at the Constitutional Convention or one of the ninety Congressmen who framed the First Amendment, today he has been made the sole spokesman and prime authority for the First Amendment’s intent.
While Jefferson cannot be considered “best evidence” on the Constitution or Bill of Rights, there are many Founders who do meet the legal requirements and who are legitimate spokesmen for those documents.
For example, if George Washington should talk of “a separation of church and state,” we should listen; for he was the president of the convention which framed the Constitution and the President of the United States who called for and oversaw the formation of the Bill of Rights. Yet Washington never uses that phrase; on the contrary, in his Farewell Address he advocates the inclusion of religious principles throughout national and governmental policies:
“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars. . . . The mere politician, equally with the pious man, ought to respect and cherish them. . . . Let it simply be asked, “Where is the security for property, for reputation, for life, if the sense of religious obligation desert?” . . . And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds . . . reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
Although this policy statement came from a man who helped frame both the Constitution and the First Amendment, today his position is ignored.
If Gouverneur Morris of Pennsylvania should say anything of “a separation of church and state,” we should listen; for not only was he the most active member of the Constitutional Convention (speaking 173 times on the floor of the Convention), he is the man who physically wrote the Constitution. As its penman, Gouverneur Morris took all the diverse ideas from the Convention floor and formed them into the language now appearing in that document; certainly he would know its intent. Yet Morris never uses that phrase; on the contrary, in his writings he states that religious principles are the basis of morality (and thus the foundation of the nation) and must be included in education:
“Religion is the only solid basis of good morals; therefore education should teach the precepts of religion, and the duties of man towards God.”
Despite his prominent role and significant contributions at the Constitutional Convention, his views are rejected in preference to Jefferson’s statement. Imagine rejecting the statements of one who was there in preference for one who was not!
If Fisher Ames of Massachusetts should say anything of “a separation of church and state,” we should listen; for it was he who – on September 20, 1789 – provided the wording for the First Amendment passed by the House of Representatives. Since Fisher Ames gave the First Amendment its wording, he certainly would know its intent. Yet Ames never uses that phrase; on the contrary, he called for the Bible always to remain the primary textbook in America’s classrooms:
“Why . . . should not the Bible regain the place it once held as a school book? Its morals are pure, its examples captivating and noble. The reverence for the sacred book that is thus early impressed lasts long; and, probably, if not impressed in infancy, never takes firm hold of the mind.”
It cannot be realistically argued that there is anyone who knows the intent of the First Amendment better than Fisher Ames. Yet today, not even he is a sufficient authority to override a statement made by someone who was not there! Those who pursue the current application of “separation of church and state” rarely quote those directly involved in the framing of the Constitution or the First Amendment to support their arguments.
The Congressional Records from June 7 to September 25, 1789, contain the complete discussions of the Founding Fathers surrounding their formation of the First Amendment. Not only do both the Constitution and the First Amendment lack the phrase “separation of church and state,” even the official discussions surrounding their creation lack its use!
It is time to recognize the historical truths concerning Jefferson’s role with the Constitution and the First Amendment. While Jefferson is a great Founding Father and a true patriot and American, he is not a primary authority on the First Amendment. Reestablish truth: quote the Founding Fathers who were part of the Constitutional process – the overwhelming majority of whom advocated the joining of religious principles to public affairs!
– David Barton