Revisiting the Judicial Orthodoxy

  Well, the FBI has been at it again. Examining documents with cutting-edge computer technology, they've deciphered blacked-out text and lost messages. And what their investigation reveals is scandalous. Another sex scandal? Blessedly, no. They were scrutinizing a draft of Thomas Jefferson's Letter to the Danbury Baptists. And what they uncovered is much more important than any alleged shenanigans—they discovered the almost forgotten doctrine of constitutional federalism. In that letter, President Jefferson referred to the now-infamous "Wall of Separation" between Church and State. For years, this so-called "Wall" has provided the pretext for restricting religious expression. But the FBI's examination of an early draft of the letter shows that what Jefferson really meant by that "Wall" bears little resemblance to the way it is being used today. In 1802, Baptists in Danbury, Connecticut objected to the established state Church—Congregationalism. They wanted President Jefferson—famous for promoting religious disestablishment in Virginia—to intervene in Connecticut. But Jefferson refused. Although he favored the Baptists' position, Jefferson explained that the Constitution forbade the Federal government to intrude in state matters. That was the "Wall of Separation" he referred to in his letter. FBI investigation of early drafts of that letter reinforces this interpretation. You see, the First Amendment forbids the establishment of a national church, but that restriction does not apply to individual states. In fact, there were established state churches in America until 1833—almost 50 years after the Constitution was ratified. Today's predominant view of the First Amendment—that silences public religious expression—could not be more different. But today's position is rooted not in the Constitution or Jefferson's writings, but in the 1947 Supreme Court decision, Everson v. Board of Education. In Everson, Justice Hugo Black proclaimed that the First Amendment forbids any interaction between Church and Government—that Jefferson's "wall [of separation]... must be kept high and impregnable." Well, American University professor Daniel Dreisbach argues that this interpretation is entirely contrary to what Jefferson intended. In the Journal of Church and State, Dreisbach points out that the so-called "Wall" had "less to do with the separation of church and civil government than with the separation between state and federal governments." You see, Governor Jefferson declared religious days of prayer and thanksgiving, but President Jefferson wouldn't. As governor, he even promoted a law punishing preachers who would not preach on state holidays. But Jefferson was no hypocrite—he simply understood that the First Amendment restricts the President, but not state governors. Now, Dreisbach's research is not just historical trivia. The Court's strict separationist mantra lacks constitutional foundation. And this has important implications for policy-making today, especially as support for faith-based ministries becomes a campaign issue. So when your neighbor cites some ACLU representative invoking the "wall of separation" to silence religious expression, tell him what Jefferson really said. And keep this view in mind when you consider candidates for office. For how well they understand Jefferson's federalism—that is, state vs. federal power—affects our most basic liberties. The Founders' respect for religion is stamped all over our founding documents. And it shouldn't take FBI investigators to find it. Related Reading: The Washington Times, "Very Political Jefferson Built 'Wall of Separation,'" (June 1, 1998). The New York Times, "Fresh Debate on 1802 Jefferson Letter" (September 10, 1998). Daniel Dreisbach, Religion and Politics in the Early Republic (Univ. Kentucky Press, 1996). ----, "'Sowing Useful Truths and Principles': The Danbury Baptists, Thomas Jefferson, and the 'Wall of Separation,'" Journal of Church and State (Summer 1997). ----, Real Threat and Mere Shadow: Religious Liberty and the First Amendment (Crossway Books, 1987). ----, "Thomas Jefferson and the Danbury Baptists Revisited," William and Mary Quarterly (October 1999). ----, "In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution," Baylor Law Review (Fall 1996).

04/3/00