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church and stateUntil 1947, few Americans knew about Thomas Jefferson’s comment, made in a private letter to the Danbury Baptist Association, that the First Amendment’s guarantee against a federally established church made a “wall of separation between church and state.” It was in that year, in the case of Everson v. Board of Education, that the Supreme Court overturned a continuous line of cases stretching to the founding era and beyond by applying the First Amendment’s religion clause, aimed at limiting federal power, against the states. The Court dredged the Danbury letter from obscurity, claiming that it, though written well after the Constitution’s adoption and by a man who took no part in drafting it or its amendments, somehow summed up the meaning and requirements of religious liberty.

Sadly, many Americans mistakenly believe that the phrase “wall of separation between church and state” is literally written into the United States Constitution. Even worse, for decades they have been browbeaten into believing that this separation requires that religion be driven from the public square. But what does it even mean to build a wall of separation between church and state? Even minimal, superficial examination of the facts of history shows that it means far less than today’s radical secularists would have us believe.

In Jefferson’s time there were clear examples of the melding of church and state power (or “church establishment”) that the United States clearly did not want to follow. Indeed, Jefferson’s own political weakness for the French Revolution itself points to a useful rejection of an unhealthy fusion of church and state. That fusion was made by the French monarchy during the early modern period. French Kings had worked for centuries to undo the Catholic Church’s partial victory during the “investiture crisis” of the 11th and 12th centuries. In this conflict the Church won the power to name her own bishops, rather than merely accepting monarchs’ own, self-interested choices. That victory enabled the Church to play a balancing role, checking the secular powers throughout Europe even as it developed its own system of ecclesiastical law governing marriage, charity, and internal church administration. The separation of sacred from profane powers and institutions provided the grounds, and spawned legal thought and practice establishing the rights of towns, corporations, and individual persons against an overreaching state. It also greatly annoyed monarchs.

The Catholic Church’s self-government became a moot point in Protestant countries after the Reformation. There secular governments became the sole powers operating in the political sphere. Luther and his followers insisted that princes should listen to counselors with religious wisdom. But only one legal structure remained, now, to govern marriage and contract, poverty and commerce, religious and secular associations. In Catholic countries the story was different. Conflicts between religious and secular leaders continued, which some monarchs saw as a source of weakness for the kingdom, rather than strength for the faith and rights of the Church and the people. Yet, in both Catholic and Protestant nations, friends of ordered liberty recognized that religious institutions must retain the ability to govern their own internal relations free from royal decrees if faith is to survive, let alone flourish.

French kings in particular worked to take back power over the Church within their demesnes. By the time of the French Revolution, the practice of “Gallicanism” had allowed Kings in France to sell Church offices, interfere in ecclesiastical issues and cases, and virtually eliminate the power of the Church to check royal power. Whatever the claims of modern secularists, the result was far from a theocracy, for the Church had in fact lost much of her power to defend herself, with many of her officers captured, in many ways even ruled by the state. Thus, the power of religious persons and officers to protect the peasants and middle classes against royal overreach was disastrously curtailed, and all too many church officials, having gotten their offices through the state, became corrupt servants of that state.

England, too, had a fully established, (Anglican) Church, whose officers were explicitly the creatures of state action and favor. Americans well knew the dangers of such an arrangement. Many of them had come to the New World specifically to escape laws requiring that they attend Anglican services and imposing a variety of legal, commercial, and political disabilities on dissenters. That said, no one who knows the first thing about American history can reasonably claim that the Calvinist settlers of New England had the slightest desire to set up secular communities. Church governance was central to public life throughout most of the colonies and shaped American conceptions of constitutionalism and liberty itself. The Church, by which Calvinists meant the myriad, largely self-governing congregations spread throughout the northern colonies (and spreading to the south over time) was to be free, to have her rights, and to play a crucial role in determining the fitness of rules and rulers alike.

James Madison and Thomas Jefferson

James Madison and Thomas Jefferson

Jefferson, along with his political ally James Madison (who, of course, actually did play an active role in drafting the Constitution and its amendments) had acted to put their aversion to church establishment into practice. Both men wrote and sought legislation in Virginia in order to prevent the state from imposing a tax on property holders for the purpose of subsidizing the established Episcopalian Church. Much has been made by secularists about Madison’s use of the rhetoric of individual conscience in this debate. But his language choice is of extremely limited relevance given that it was used in fighting, at the legislative and not the constitutional level, overt church establishment in one state—at a time when other states were, in fact, establishing churches in the sense of seeing to their financial support from general state revenues. Throughout most of the colonies and early states, the hierarchy of formal, exclusivist Episcopalian establishment raised concerns, but support for religious education was essentially universal, even at the federal level; in this respect the Northwest Ordinance declared that federal support should be given for religion in frontier lands.

Madison himself stated during debates over First Amendment language in the first Congress that his goal was protection against establishment of a “national church” and protection of the “full and equal rights of conscience,” by which he meant protection of the civil rights of all Americans, regardless of their religious belief or worship. The summary of the debate shows Madison to state that he believes the religion clause language to mean that “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.”

These are, in fact, highly valuable restrictions on the powers of the federal government. But the “wall of separation between church and state” they establish, if indeed it can properly be called such, is extremely low and permeable. The goal is not, as with so much contemporary hand-wringing over public expressions of common faith, to empty the public square of religious expression. It was, rather, to prevent precisely the kinds of anti-religious rules becoming increasingly common in the United States. The framers of our Constitution would have no problem with school prayer or tax subsidies for all schools, including parochial schools. What they would have a problem with, and what we should have a problem with, are rules that invade churches’ proper sphere of self-government. Thus, to take one prime and timely example, Obama Administration rules requiring that the order of Catholic nuns, Little Sisters of the Poor, allow the government to use its health care plan to distribute contraceptives and abortifacients are the natural outgrowth of all too many people’s ignorance of their own constitutional order. These rules chain the Little Sisters of the Poor to conduct they find morally abhorrent on religious grounds. Worse, given the current logic, such rules can only lead in one direction: toward forcing churches to abide by supposedly neutral rules, for example regarding discrimination in who the church may agree to join in marriage, or who it may ordain as priests.

In “neutral” fashion, with the stated aim of “protecting individual rights,” we are very quickly moving toward a society in which faith is relegated to the realm of mere belief, in which the acts of religious people will enjoy no protection from the latest, potentially deadly desires of those in power. In justifying a totalitarian Leviathan state, Thomas Hobbes argued that no one can have any complaint should the sovereign force them to say or do something they find objectionable because they always would be “free” to believe as they wish. Such freedom is worse than specious, it is a damnable lie. Sadly, it is a lie by which we increasingly are asked to live.

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7 replies to this post
  1. Citing what the framers of The Constitution would or would not have a problem with does not always carry weight. Many times, people are inconsistent or blind to the implications of what they wrote.

    I believe that the question posed in the title of this article is not the question we should ask. The question we should ask is whether there should be a wall of separation between Church and State. And the answer to that question can be found in one word: depends. It depends on whether the Church is looking to share society with all others as equals. For if it isn’t, then the wall of separation is needed.

    The issue of school prayer is a good example to see whether the Church is looking to share society with others as equals. Though our Founding Fathers may not have had a problem with school prayer, individuals who were forced to participate did is a good enough reason, according to the First Amendment, not to have school prayer.

    The criteria I am suggesting for determining whether there should be a Wall of Separation is problematic for many conservative churches including my own church. The reason for that is that many conservative churches tend to rely too heavily on authority and thus promote and authoritarian mindset. Authoritarianism does not lead us to sharing society with others as equals. Rather, it leads us to taking charge and enforcing what our consciences say is right onto the consciences of those who disagree.

    However, if we look at the work Martin Luther King Jr. did in fighting racism, we find that a wall of separation between Church and State is not necessary or even desirable. But then again, we must look at the equality aspect of his work to see why.

    So whether there should be a wall of separation between Church and State depends on us.

  2. Professor Frohnen says: “The framers of our Constitution would have no problem with school prayer…What they would have a problem with…are rules that invade churches’ proper sphere of self-government.”

    Absolutely true. Can I ask this though: what to do in our multi-religious (sadly or not) Western countries where most people are no longer anything other than nominal Christians? Should we, can we, start the day – as we did in my day – with the Lord’s Prayer in our public (private and parochial schools aside) schools? No, that’s no longer logical. I think the author would agree with me on this point (albeit not the central point of his piece, but I’m still on topic): we can no longer endorse or give preferential treatment to Christianity in our public schools. If we allow children from non-Christian backgrounds to live amongst us in our post-Christian nation(s), and if we accept a public obligation to educate them, school prayer – Christian, Jewish, Muslim or otherwise – is unfair and unjust.

  3. “Though our Founding Fathers may not have had a problem with school prayer, individuals who were forced to participate did is a good enough reason, according to the First Amendment, not to have school prayer.”

    No one should be forced to participate in school prayer. Ever. This does not necessarily lead to the conclusion that we should not have school prayer. In a truly diverse society, we encourage those who do not wish to participate, to abstain from participating. And then we teach respect for both points of view. It is a perfect teaching opportunity in the classroom with respect to the true meaning of freedom in a pluralistic society.

    But we do not uphold our constitutional ideals (and requirements) by prohibiting those who wish to participate from having prayer in school. We do not accept as determinative of the issue that the “feelings” of those do not wish to participate REQUIRES us to ban all school prayer. We are a diverse society, that should have as one of its foundational principles that in a free society, we can be offended, but our offense does not permit us to limit the freedom of others, on both sides of the issue.

    This is where we have gone off the rails. We have simply replaced one form of intolerance (all must participate) with another form of intolerance (none must participate). This is not progress; it is simply one side replacing one form of intolerance with another form of intolerance.

    The broadly-applied and enforced “wall of separation” is not a constitutional principle; it is an ideological principle.

  4. 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) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), 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 (by which governments generally were grounded in some appeal to god(s)), 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 affirmatively 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 words “separation of church and state” do not appear in the text of the Constitution assumes much importance, it seems, to some who once mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. The absence of the metaphorical phrase commonly used to name one of its principles, though, is no more consequential than the absence of other phrases (e.g., separation of powers, checks and balances, federalism) 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. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

    Professor Frohnen points to Madison’s comments on a precursor of the First Amendment and asserts that they show “Madison to state that he believes the religion clause language to mean that ‘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.’” Hardly. Indeed, the opposite conclusion is more logical. Madison initially doubted the need for any amendment on the subject because he considered the matter beyond the government’s power anyway; since others insisted on it, though, he was persuaded to introduce a proposed amendment. During the discussion in the First Congress, some expressed a desire to focus the amendment on establishment of a national religion by law. Madison was generally comfortable with much of what others proposed, including that, and he made a motion to add the term “national” to a precursor of what later became the First Amendment. As it turns out, though, those versions of the proposal were rejected. The term “national” was omitted and broader phrasing was employed in the First Amendment as ultimately adopted. The explicit consideration and rejection of language focusing the amendment on establishment of a national religion suggests that the ultimately adopted version is not so focused. Not only does Frohnen’s conclusion not logically follow from the evidence he offers, but Madison, the very founder whose intent he purports to champion, repudiates his views in other documents and actions he ignores.

    Madison confirmed that he understood the Constitution and the First Amendment to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution–without the First Amendment–to separate religion and government. 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., as Madison noted in his Detached Memoranda, by “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.”

    Perhaps most telling is that, during his presidency, Madison 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.

    As for whether the metaphorical wall of separation should be high and impregnable, Madison also touched on just this point in his Detached Memoranda. He not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

  5. Madison, judging from his own words in his Remonstrance, wanted to ensure that the State would have no effective, authoritative, ecclesial check on its power. He got what he wanted. The next thing was to have no natural law check on human law. This was achieved as well.

  6. It would have been good also to have included emphasis on the point not made in this otherwise useful essay that there was never any intent to establish any “wall” between religion or religious expression and the national government — rather than leaving the possible misimpression that “religion/religious expression” de facto = “church” — nor anything about ending the quite common practice at the time of state, or state-supported, churches and religious education in the several states.

    Today’s disputes about public display of the Ten Commandments, allowing prayer in schools and in other public institutions, Christmas displays in town squares and all other expressions of religious sentiments or truths are not remotely connected to any legislated establishment of a state or a national church and therefore there is no constitutional basis for any negative sanction.

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