Misunderstanding Jefferson’s ‘wall of separation’ metaphor

by P.A. Madison on November 19th, 2010

Not intending to revisit what has already been written following the Coons/O’Donnell Senate debate over church and state under the First Amendment, I do though want correct an erroneous assertion that Jefferson’s use of the phrase “wall of separation between Church & State” is somehow improper or erroneous. The fact is there is nothing wrong with Jefferson referring to the Establishment Clause as a wall between church and state in his famous Danbury Baptists letter. Jefferson was simply describing in a colorful way disestablishment, which in simple words means religion can no longer be an auxiliary of government control.

The problem isn’t Jefferson’s choice of words in referring to disestablishment for which was the purpose of the religious clause, but how the court misconstrues the word “establishment” for the word “endorsement” thereby implying the people through their governments can’t acknowledge religion, period. The Establishment Clause has been judicially transformed to such an extreme extent that it now means any religious symbol on public property can be judicially declared a violation because it might be seen as some official government endorsement of religion.

The Supreme Court does just what the First Amendment set out to prohibit, federal control over religious matters of the people. The Fourteenth Amendments principal framer, Rep. John A. Bingham, stressed how Christianity and morality was an important principle for State legislatures to recognize after its adoption.

More insulting is the fact the court had to invent the fiction of substantive due process in order to rewrite “Congress shall make no law” to “No State shall make no law” in order to apply to the States, something that never was successful through seven attempts to amend the Constitution post Fourteenth Amendment to make the Establishment Clause in some form or another applicable against the States.

The words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” means in simple words that no power was invested in Congress to established a national church and to compel by law worship of its tenets, which in return disallows the “free exercise” of religion. This is the “wall” the First Amendment erects Jefferson was referring to. Two days after Jefferson wrote his “wall of separation” metaphor he attended church services held in the House of Representatives where the Speaker’s podium was used as the pulpit.

This wasn’t no isolated event either as he continuously attended church services held on government property during his two terms as President. President Madison also attended church services in the House on Sundays. Even the Treasury building was used as a church on Sundays where John Quincy Adams was known to attend.

Jefferson wrote in his Second Inaugural Address that the Constitution left religious matters “under the direction and discipline of State or Church authorities acknowledged by the several religious societies.” James Madison describes what disestablishment accomplishes under the First Amendment:

Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform.

The First Amendment does not disable Congress from recognizing or participating in religious practices but only prohibits Congress from creating by law a religious establishment and compel its worship and thus, “prohibiting the free exercise” of other religions. Churches established by law were well known to the colonists since nine of the thirteen colonies prior to the revolution had state established churches by law. At the time of the adoption of the First Amendment, half still maintained official religious establishments.

An establishment meant government control and indoctrination of religious tenets through governmental authority. Establishment could be either coercive or intolerant as Baptist found in Virginia before Jefferson penned the Bill for Establishing Religious Freedom in 1786.

Arguments made against establishment were that government tended to corrupt religion, was contrary to freedom of conscience and disestablishment would have the effect of revitalizing Christianity. As Madison put it, “morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.”

The first question under any establishment controversy will be whether there has been a law enacted that establishes a government controlled church or a law compelling all persons to worship a certain religious sect. Questions over whether religious symbols on public property are a First Amendment violation is pure rubbish. The First Amendment will historically always be a check against government establishing a religion and declaring by law that it is the only religion that can be worshiped (restraining the free exercise of worshiping other religions) and not anything to do with acknowledging religion and its teachings.

Related: Thomas is right, Establishment Clause Jurisprudence ‘in Shambles’

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11 Responses | Leave a Comment
  1. Dan says:

    The actual Quote by Jefferson:
    “In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies.”

  2. Michael says:

    Margaret Bayard Smith, in her memoir The First Forty Years of Washington Society, recalled:

    “During the first winter, Mr. Jefferson regularly attended service on the sabbath-day in the humble church. The congregation seldom exceeded 50 or 60, but generally consisted of about a score of hearers. He could have had no motive for this regular attendance, but that of respect for public worship, choice of place or preacher he had not, as this, with the exception of a little Catholic chapel was the only church in the new city. The custom of preaching in the Hall of Representatives had not then been attempted, though after it was established Mr. Jefferson during his whole administration, was a most regular attendant. The seat he chose the first sabbath, and the adjoining one, which his private secretary occupied, were ever afterwards by the courtesy of the congregation, left for him and his secretary.”
    -Smith, First Forty Years = Hunt, Gaillard S., ed. The First Forty Years of Washington Society: Portrayed by the Family Letters of Mrs. Samuel Harrison Smith (Margaret Bayard) from the Collection of her Grandson, J. Henley Smith. New York: Scribner, 1906.

  3. Larry says:

    When the Constitution was being written, the founding fathers voted against prayers at their sessions; it’s the first constitution in history without any mention of God, and the most successful Constitution yet.

    There is no purpose in mentioning “God” in a federal Constitution because it deals only with matters pertaining to a union of member states which makes it different from a Constitution a people choose for themselves to govern their daily lives and concerns.

    Congress immediately established a chaplaincy and held congressional prayer meetings every Saturday night. It wasn’t like the recognition of religion was absent.

    Any good book on Jefferson’s life should detail his church attendance in the House on Sundays.

    • Bob Barbabella says:

      Larry, you overlooked a critical quote from Ben Franklin. After much toil and frustration without a lot of consensus, Franklin stood up and said,

      “If a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We’ve been assured in the sacred writing that, ‘Except the Lord build a house, they labor in vain that build it.” Note: He was quoting Jesus.
      Benjamin Franklin – on the floor of the Constitutional Convention, Thursday, June 28, 1787

  4. Amy says:

    Your last comment is only half true: there IS strong historical evidence that the First Amendment was also intended as a check against government endorsement of religion. When the Constitution was being written, the founding fathers voted against prayers at their sessions; it’s the first constitution in history without any mention of God, and the most successful Constitution yet. (Contrast that with the Articles of Confederation, where they did have prayers at every session while they were being written; we know how successful THEY were).

    • Bob Barbabella says:

      Small, but important correction to a typo above. Where it says, “This part saying while we don’t forbid Congress…” should read, “This part saying while we forbid Congress…”

      Sorry folks.

    • Bruce says:

      If that was the case it would have been so easy for them to say “make no law respecting an establishment of religion, the endorsement of religion nor prevent the free exercise thereof.” But since they did not, then they must have been ok with the endorsement of religion.

  5. Amy says:

    Can you provide source(s) of Jefferson’s attending a religious service in the House of Representatives?

  6. GregP says:

    As usual you do a great job at putting the constitution in proper legal context per its history, Paul.

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