Thomas Jefferson and the Wall of Separation between Church and State (review)

This is an excellent, eloquent book about a metaphor—the "wall of separation" that Thomas Jefferson believed the First Amendment placed between "Church and State." Dreisbach has written an almost definitive book on this metaphor, with a double focus—on the uses and pitfalls of metaphors in legal discourse, and on the meaning of the very brief words in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Jefferson included his "wall" metaphor in a now famous, carefully crafted, politically motivated 1802 letter to the Danbury Baptist Association in Connecticut. Always sensitive to the point of paranoia, Jefferson still seethed with anger from the attacks from clergymen in the campaign of 1800. He was also under attack for his refusal to issue proclamations of thanksgiving or fasting and prayer, an issue that he openly addressed in early, longer drafts but left out of the final letter. In the first half of this book, Dreisbach carefully attends to all the implications of this letter, surveys many earlier uses of the "wall" metaphor, and explores the implications of related metaphors (wire fences, lines, gated walls, even iron curtain).

Neither the language of the First Amendment nor Jefferson's metaphor is very clear. The Constitution of 1787 specifically delegated certain legislative powers to the Federal Congress, and reserved all others, including religious issues, to the states. Thus, the Congress had no authority to pass any laws relating to an establishment of religion but, as subsequent events made clear, it could not avoid laws that related in some sense to religion, including the religiously grounded moral commitments of citizens. To facilitate the free exercise, it almost had to appoint military chaplains, and later chose to exempt religious contributions from taxation. The First Amendment assured anxious New England states that the federal government would not interfere with their legally established churches, and that it would not challenge the religious preferences in all early state constitutions (for Christianity, Protestantism, Trinitarianism, or at least theism), or preferences that courts today define as tending toward an establishment. Thus the First Amendment did not place any wall of separation between governments and religion, but it did reaffirm a restraint, although never a perfectly clear restraint, upon federal power.

Jefferson's metaphor was a poor gloss on the language of the Amendment, for it suggested a much greater degree of separation between federal legislation and the many facets of religion (beliefs, worship, institutions, clergy, moral codes). Although his "wall" could apply, legally, only to the federal government, Jefferson clearly would have liked states to accept the rather vague principle of separation. Note that he used the parochial Christian term, Church, rather than a broader term encompassing non-Christian, and even non-theistic, religions. But what "separation" entailed was not clear even for Jefferson. It seemed to have a largely institutional reference. He proclaimed days of fasting and prayer as governor of Virginia, appealed frequently to a divine power in his presidential addresses, and attended worship services in the chambers of the House of Representatives.

Jefferson's "wall of separation" had almost no impact on early court decisions. Even early editions of Jefferson's papers did not include his Danbury letter. It re-entered legal discourse with a bang in 1879, when the Supreme Court upheld the conviction of a Mormon under a federal anti-bigamy law. The Court affirmed the Danbury letter as "an authoritative declaration of the scope and effect of the [first] amendment." Yet, the case scarcely involved separation, but the opposite. The federal government prevented Mormons from a free exercise of their religion, in which plural marriage was a very critical doctrine. Before later uses of the metaphor, a critical shift occurred, one more often assumed than clarified by Dreisbach—the twentieth-century use of the Fourteenth Amendment to expand the protections in the bill of rights to...