Religious Freedom: Jefferson's Legacy, America's Creed

6. FEDERAL CONTROL

6 FEDERAL CONTROL Jefferson’s Vision in Our Times    ’  ’    same were active topics in the political discourse in the states throughout the nineteenth century. On the other hand, after adoption of the First Amendment , applicable only to the federal government, its religion clauses appeared to slumber judicially for the better part of  years. This was not entirely unexpected ; most relevant treatment of religion and religious freedom occurred at the state level and was not directly affected by the First Amendment. It was not until , in Cantwell v. Connecticut, that the Supreme Court concluded that the First Amendment’s protection of religious freedom applied equally to the states.As a result, for the past three-quarters of a century, the courts have faced a veritable blizzard of litigation concerning the scope of the religion clauses as questions of religious liberty appear to have been largely constitutionalized. This was a change that neither Jefferson nor Madison could have foreseen. This raises a question: Since the Establishment Clause only applied to the federal government when adopted, and was intended to leave the states free to regulate religion as they saw fit, should it now be applied to the states? Since application of the First Amendment to the states drove the explosion in First Amendment jurisprudence in the twentieth century,this is a good place to start. Initially, though, the application of the First Amendment to the states seemed largely noncontroversial, as did the reliance on a Jeffersonian vision. At midcentury the Supreme Court suggested a continuing, if not strengthened , vitality for the Virginia Statute as a Rosetta Stone for understanding the First Amendment, referring to Jefferson’s and Madison’s writings and the Virginia Experience as the“warp and woof of our constitutional tradition” and    the Statute as“particularly relevant in the search for First Amendment meaning .” This view was virtually unanimous on the Court in the s and s, and twentieth-century historians broadly agreed. Beyond the courts, Jefferson’s “wall of separation between church and state” was largely absorbed into the cultural fabric.¹ Yet, beginning in the s and s, many evangelical Christians, traditionally some of the strongest supporters of a strict separation between church and state and the Jeffersonian ideal, started to question that approach. The causes of this change were myriad but paralleled the apparent growth in the Supreme Court’s reach, particular Brown v. Board of Education in  and the school prayer cases in the early s. Reflecting that same unease, in the past thirty years the conservative wing of the Court has sought to narrow the separation between church and state and broaden government “accommodation ” of religion. In doing so, several justices have launched an open attack on the Court’s (and historians’) reliance on Jefferson and Madison and the Virginia Experience. These critics ask why Jefferson’s views should be privileged rather than the views of other Founders who had a more robust notion of the permissible cooperation between church and state.These concerns will be considered briefly here—briefly because many are addressed in earlier chapters. This leaves the problem of application of Jeffersonian principles to a host of modern issues that even the most erudite of eighteenth-century minds could not have predicted. Such application is always complicated by context and changes in law, society, and technology, and this work presents neither the time nor the place for an exhaustive review of recent religious freedom cases and an evaluation of how Jefferson might view such issues through the mist of time. Still, a survey of Jefferson’s and Madison’s actions concerning several controversies in their own time is essential to a fair understanding of how rich and nuanced their views were and can provide a useful backdrop for appreciating how extensively Jefferson still speaks to us today on the issue of religious freedom.He was certainly emphatic that government should neither encourage nor endorse religion, but he never sought to purge religion (private religion) from the public square. Incorporation The FirstAmendment,when adopted,applied only to the federal government.² In fact, as previously noted, the religion clauses were crafted in part to ensure    that states could continue to regulate religion as they saw fit, accommodating or restricting religion free from federal interference. After all, in , when the amendment was adopted, all but one of the...