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

INTRODUCTION

INTRODUCTION         Jefferson, or so said the conventional wisdom, and the Supreme Court, for most of the twentieth century. At one level, perhaps that is not surprising. Jefferson often seems the most tangibly present of America’s Founders. He is quoted more often, reportedly , and referenced more commonly in the blogosphere than any other early American. Political campaigns, from right and left, seek to embrace Jefferson’s wisdom and capture his image on everything from debt reduction, to race relations , to the structure of government. Celebration of our“nation’s birthday” is intimately linked with Jefferson’s most famous production. To those who have spent time at the University of Virginia or at Monticello, his presence seems particularly palpable. Why not seek his vision on a topic that has tended to define the American experience at home and abroad? Certainly,Jefferson had much to say on the topic.Issuing a vehement,almost angry, demand for religious liberty, he famously declared,“I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man,” a phrase engraved on his monument on the Tidal Basin in Washington , D.C. Even more well-known is his Letter to the Danbury Baptists explaining his view that the First Amendment to the U.S. Constitution builds a“wall of separation between Church & State.”¹ Until relatively recently, the notion that Thomas Jefferson—and his wall of separation—stood at the center of American religious freedom was largely noncontroversial. Since , the Supreme Court has defined the principle of American religious freedom by reference to the learning of Jefferson and his    devoted lieutenant, James Madison, particularly Jefferson’s Statute for Establishing Religious Freedom and  Letter to the Danbury Baptists and Madison ’s Memorial & Remonstrance Against Religious Assessments, which played an important role in the adoption of Jefferson’s Statute. While application of the principle by courts and legislatures sometimes suffered, the principle itself was exceedingly important, and rooted in Jefferson. Chief Justice Earl Warren explained in  that the Court “considered the happenings surrounding the Virginia General Assembly’s enactment of ‘An act for establishing religious freedom,’ . . . written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, and as particularly relevant in the search for First Amendment meaning.” A similar near consensus triumphed in the academy.² The Jeffersonian vision was equally active beyond the courts. In fact, that vision permeated the consciousness of America so thoroughly that arguments before the courts are in many respects only around the periphery. William Lee Miller explains that “the American tradition thus built [by Jefferson and his allies] was to have a much larger meaning than could be found, two centuries later, simply by looking at issues generating heat under the headings ‘church and state,’‘religious freedom,’‘religion-in-politics.’” Today, two-thirds of Americans agree that separation of church and state is part of our constitutional heritage.³ Yet, in recent years, as one approaches the divisive issue of religion and its proper place in the modern polity, the image of Jefferson that had been dominant on the question of religious freedom has become somewhat less clear or, perhaps, tarnished. Voices on both the right and the left alternately use or disavow Jefferson’s authority. Two developments feed the present unease with the sage of Monticello. First, while Jefferson became the favorite spokesman for twentieth-century Supreme Court justices determined to construct a high and solid wall between church and state, in the past thirty-five years serious questions have been raised about the centrality of Jefferson to the historic development of American religious freedom. Critics of too strict a separation point out that Jefferson was hardly the only Founder and that, in fact, many others had a far more robust notion of church/state cooperation, making Jefferson an outlier. They argue that fixation on Jefferson to understand the First Amendment is ahistorical. Others, seeking a similar result, take a different tact: Jefferson’s own religious   actions in the public square—from his attendance at church services in the House of Representatives in Washington, D.C., to his invocation of divine providence in his inaugural addresses—lead to questions concerning the scope of Jefferson’s vision for...