Continuing the theme from the last essay, we often hear this argument – “Separation of church and state isn’t in the constitution”. It’s a rather silly argument, but it’s very popular. Some people really do look at the first amendment and think, “Gee, those words really aren’t in there. I guess that settles it.” Well, no it doesn’t. A little knowledge of history and a little thought will suffice to dispel this argument.
Of course it’s true that the actual phrase “separation of church and state” is not in the constitution. But then neither are the phrases “separation of powers” or “checks and balances”, yet no one would argue that the concepts are not there, embodied in numerous specific provisions. Just as the founders used those phrases to describe the intent of the constitutional provisions for power to be divided between three branches of government, they also used the phrase “separation of church and state” to describe the intent of the religion clauses of the first amendment. When the courts go about applying constitutional law, one of the primary ways they do it is to look for the “legislative intent” – the purpose that those who wrote the law had in mind, the goal they wanted to accomplish. When the men who wrote it say in several places, as they did, that the goal of the religion clauses of the first amendment was to erect a wall of separation between church and state, that is about as authoritative as it gets when you’re trying to determine legislative intent.
So, from where does this phrase originate? Most people know about Jefferson’s letter to the Danbury Baptists, which is the first place in which it appears in a writing by one of the founders. One of the most commonly used arguments by the religious right is that Jefferson intended the wall to be “one directional” – that it was intended only to protect the church from the intrusions of the state. But this is absolutely false. The Danbury Baptists had written Jefferson a letter congratulating him on his election to the presidency and to ask for his assistance in getting rid of the official church establishment in Connecticutt. Connecticutt had an official religion of Congregationalism and all citizens in that state were required to pay a tax that supported the church. Thus, the issue at hand was not a violation of free exercise, but a violation of the ban on establishments (though technically it was neither, since the first amendment only applied to federal laws, not state laws – this was changed with the passage of the 14th amendment). Jefferson replied:
“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.”
Some have also replied to Jefferson’s letter by saying that it is irrelevant, since Jefferson was in France at the time of the writing of the bill of rights and not a part of their framing. While true, this is a weak argument. Jefferson was in constant contact with several of the men who were there and it was his Religious Freedom Act in Virginia that was the model for the first amendment. He was particularly influential on James Madison, who chaired the committee that wrote the amendment and was the primary intellectual force behind the bill of rights. But at any rate, even without Jefferson’s letter we have ample reason to use the phrase because it was used by those who actually were involved in framing the amendment directly, particularly Madison. For instance, in a letter to Robert Walsh in 1819, he discussed the benefits of the religion clauses of the first amendment and referred to them as requiring, “the total separation of the Church from the State”. In his Detached Memoranda, Madison pleaded with the states to follow the example of the federal constitution, saying:
” Ye States of America, which retain in your Constitution or Codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise & purify your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions. Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.”
Here we have a variation on the phrase, “separation between religion and government”. As this quote also points out, Madison was clearly not in favor of a uni-directional wall that only protects church from state and not state from church, as he speaks of the “danger of encroachment by ecclesiastical bodies”. Furthermore, Madison makes it clear that the goal of the first amendment was not merely to prevent the establishment of an official church, as many on the religious right claim today, but to prevent anything close to such an establishment. He even went so far as to argue that Congressional chaplaincies was a violation of the first amendment, again from his Detached Memoranda:
The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.”
The esteemed first amendment scholar Leo Pfeffer, in discussing this argument, said:
“It is true, of course, that the phrase ‘separation of church and state’ does not appear in the Constitution. But it was inevitable that some convenient term should come into existence to verbalize a principle so clearly and widely held by the American people….[T]he right to a fair trial is generally accepted to be a constitutional principle; yet the term ‘fair trial’ is not found in the Constitution. To bring the point even closer home, who would deny that ‘religious liberty’ is a constitutional principle? Yet that phrase too is not in the Constitution. The universal acceptance which all these terms, including ‘separation of church and state,’ have received in America would seem to confirm rather than disparage their reality as basic American democratic principles.”
Another very common argument that you hear is that the purpose of the first amendment was only to prohibit the establishment of an official national church, or to prevent the establishment of a specific denomination of Christianity over another. The history of the framing of the religion clauses shows this argument to be false. Congress proposed and rejected numerous wordings that would have limited the prohibition only to those two things. The first wording to be rejected was:
“The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established”
A later wording that was proposed and rejected was:
“Congress shall make no law establishing any particular denomination in preference to another”
If they had intended only to prevent those de jure establishments of official churches or denominations, then why did they reject multiple wordings that would have done exactly that and vote instead for the much broader wording of “respecting an establishment of religion”? Because, as Madison noted, the purpose was to prevent everything like an establishment of religion – not merely a de jure establishment, but de facto establishments as well.
Those who make such arguments simply don’t know enough about the legislative history of the first amendment to support the claims, all of which are false. What they commonly do have, however, is quotes from several of the founding fathers indicating that Christianity is a good thing, or that Christianity was necessary for the nation to succeed. What they do not understand is that whether one thinks Christianity is a good thing or not has no bearing on their position on separation and whether the government should endorse that belief. Indeed, some of the staunchest defenders of strict separation in the early days of the country were Baptist ministers like Isaac Backus or John Leland. Strict separation is not premised on a rejection of Christianity. Indeed, Jefferson and Madison both argued forcefully that strict separation, far from being a rejection of religion, was necessary for religion to flourish.