Vol. 14 No. 1 (January 2004)
THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE, by Daniel L. Dreisbach. New York: New York University Press, 2002. 304 pp. Paper $19. ISBN 0-8147-1936-8.
Reviewed by John von Heyking, Department of Political Science, University of Lethbridge, Alberta, Canada. Email: firstname.lastname@example.org .
In LEVIATHAN, whose title refers to the Biblical sea-monster which serves as a metaphor for sovereignty, Thomas Hobbes cautions against writers who use metaphors: "For seeing they openly profess deceit, to admit them into counsel or reasoning were manifest folly" (Hobbes 1994, 39). In THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE, Daniel L. Dreisbach dissects the meaning of Jefferson's metaphor of "wall of separation" that has become the dominant metaphor for First Amendment jurisprudence on religious freedom and antiestablishment. It was introduced in REYNOLDS v. UNITED STATES (1879), and then established by Hugo Black as the guiding metaphor for strict separation in EVERSON v. BOARD OF EDUCATION (1947), until the 1990s when, in a series of decisions, the Rehnquist Court moved away from strict separation and thus found the metaphor less useful than its predecessors. Given the shifting understandings of the First Amendment and the confusion over the meaning of "wall of separation," Dreisbach performs a useful service by examining Jefferson's own understanding of the metaphor, the political context in which he first used it, and, along the way, the utility of metaphors for legal reasoning.
The book is divided into eight chapters, plus nine appendices and nearly ninety pages of notes. The appendices reproduce various pronouncements by Jefferson on the subject of church-state relations, including his 1779 Proclamation (as Governor of Virginia) for a day of Thanksgiving and Prayer, his correspondence with the Danbury Baptist Association (1801-2) in which he explained why, as president, he rejected proclamations of Thanksgiving and prayer, and excerpts from his 1805 Second Inaugural Address in which he asked the nation to join him in supplications for "the favor of that Being, in whose hands we are." Dreisbach includes these documents to aid the jurists and scholars who use Jefferson's metaphor, as well as to supplement his argument that Jefferson's understanding of the "wall of separation" was more nuanced than his twentieth-century legal heirs think.
Chapters One to Four cover Jefferson's understanding of the metaphor, with a detailed analysis of the circumstances surrounding the composition of the letter to the Danbury Baptists in which the image occurs, as well as an analysis of Jefferson's thoughts on church-state relations before and after 1802, and the role of federalism within that relationship. Chapter Five examines earlier usages of the "wall" metaphor to signify church-state relations in Richard Hooker, Roger Williams, and James Burgh. Chapter Six examines alternate expressions in American discourse, including Madison's "line of separation," which is subtler than that of wall, even though, despite differences over language, the two statesmen agreed substantially on church-state relations. Chapter Seven traces the history of the metaphor in First Amendment jurisprudence. Chapter Eight assesses the utility of the figure of speech and the role of metaphors in general for legal reasoning.
Dreisbach argues that Jefferson's fairly nuanced account of church-state relations became reified in the twentieth-century when it came to signify strict separation. He rehabilitates Jefferson's understanding with a careful examination of the various drafts of his letter to the Danbury Baptists, the political purposes Jefferson had in mind in composing it, and he compares it to other statements Jefferson made both as President and as Governor of Virginia. Contrary to the strict-separationist account, Jefferson thought the First Amendment regulated relations between the state and churches, and not the broader relationship between state and religion. Moreover, the First Amendment applies only to the federal government; states may establish and support churches, as well as issue Thanksgiving and prayer proclamations-as Jefferson himself did while governor of Virginia.
His letter to the Danbury Baptists explains why, as President, he refused to issue proclamations of Thanksgiving and prayer, in contrast to his Federalist predecessors George Washington and John Adams. The Federalists had tried to portray him as an atheist and infidel during the election of 1800. In the letter, he explains that one's relationship with God is between him and God alone, and that the state has no role in that relationship. The letter was written in part to demonstrate Jefferson's friendliness to religion, as well as to criticize his Federalist opponents in Connecticut, who supported Congregationalist establishment in that state over and against the Baptists who saw in Jefferson a defender of their rights. Dreisbach argues throughout the book that the letter's political purpose outweighs any attempt to transform it into a "dispassionate theoretical pronouncement" (p.30). Two days after writing his letter to the Baptists, Jefferson attended the religious service that Baptist elder John Leland, who was visiting Jefferson, performed in the Hall of the House of Representatives (pp.21-2). So much for "wall of separation" about which Hugo Black stated, "we could not approve the slightest breach" (EVERSON, 330 U.S. at 18; quoted in Dreisbach, p.4). Even so, Jefferson differed from his Baptist supporters, who promoted disestablishment, as he went further by advocating separation (p.51).
Dreisbach argues that the primary area of jurisprudence for the "wall" metaphor is not between church and all civil government, but between federal and state governments. As governor, Jefferson issued proclamations of Thanksgiving and of prayer. In his 1810 letter to Reverend Samuel Miller, which Dreisbach characterizes as a commentary on the letter to the Danbury Baptists, Jefferson explains that his rejection of such proclamations as president resulted from his understanding of the First and Tenth Amendments.
Dreisbach offers a fascinating and thorough account of Jefferson's understanding of the metaphor. While his attention to historical context, philology, and the voluminous amount of secondary literature on the subject (over one hundred pages of notes and bibliography) is masterful, his interpretations are at certain times strained and his theoretical apparatus does not wholly serve him. For instance, he has James Hutson interpret Jefferson as supporting "'friendly aids' to the churches" (p.42), which, to our ears, sounds like school-vouchers or President Bush's faith-based charities policy. However, Dreisbach fails to clarify what this means. Given Jefferson's rejection of having the federal government provide official and material support to churches and church doctrine, it is unlikely he would support such "friendly aids." Similarly, Dreisbach's reliance on the Tenth Amendment to read the Danbury letter is strained, since the letter's focus is exclusively on the role of the national government; his silence about establishment in Connecticut can be explained with reference to his desire not to alienate the Congregationalists any further, a consideration that caused him to revise the letter from previous drafts.
While Dreisbach refers repeatedly to the circumstances in which the letter to the Danbury Baptists was written, the significance of these circumstances remains vague for purposes of drawing lessons for church-state relations. His analysis of Jefferson's writings and actions indicate that the national government should not provide any direct support of churches in the form of proclamations or in the form of material assistance. However, it seems that government may promote religion indirectly, as Jefferson did when he used religious language to play both sides of the First Amendment controversy (p.57). Accordingly, government may use religion to sustain republican principles, but it is not in the business for promoting piety for the purpose of people's salvation. Jefferson's political use of religion can be seen in his attendance of worship ceremonies and in the religious rhetoric he used to defend religious liberty.
He clarifies his political use in an 1810 letter to Rev. Miller, where he rejects the distinction that Miller had made between using the presidential office to recommend religious practices versus using it to require them. That is, he rebuffs the distinction between direct and indirect support of religious practices, reasoning that even to recommend a religious exercise is to sanction it in the court of prescription and of public opinion (p.153). Religious societies are better suited to enjoin such exercises. Yet, what was Jefferson's constant and very public church attendance, including that led by Baptist Elder John Leland at the House of Representatives, but an example of giving religious exercise sanction in the court of prescription and public opinion?
What Jefferson omits in his letter, and which is under-examined in the book, is that the primary distinction for Jefferson is not the issue of direct and indirect support, or proclamation and recommendation. Rather, the primary distinction for Jefferson is promoting religion for the health of the republic (the political purpose of religion) versus promoting it for the salvation of people's souls. It seems that government may indirectly support the former but never the latter. This is the import of his asking Americans to join him in prayer in the Second Inaugural. Doing so assists the republic; whether it assists people in attaining salvation is of no concern for government. Whether there can be a conflict between one's conscience (what "Nature's God" commands) and the health of the republic (what the "Laws of Nature" commands [see Declaration of Independence]), depends on how one comprehends Jefferson's understanding of natural right, which is outside the scope of this book.
If there is a wall of separation, it is not per se between church and state as much as it is between an individual's conscience, which government can never touch, and his external actions, which, when it comes to religious exercises, government touches indirectly through shaping of public opinion. If the Danbury letter must be understood in the context of Jefferson's conflicts with the Federalists and Connecticut Congregationalists who had establishmentarian leanings, then the "wall of separation" describes not so much the institutional relationship between church and state, but the new republican natural right "establishment" that finds its most important expression in the realm of ethics and mores.
Dreisbach has provided the legal community with a valuable service in bringing together the documentary evidence for Jefferson's understanding of the "wall of separation," along with careful and transparent commentary on what the evidence means. He successfully carries out the goal of the book, even though some might wish that goal were more ambitious. Even so, this book provides a good analysis of the starting-points, and thus serves as a good jumping-off point for considering broader questions.
Hobbes, Thomas. 1994. LEVIATHAN. Edited by Edwin Curley. Indianapolis: Hackett.
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879).
EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).
Copyright 2004 by the author, John von Heyking.
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