Jul 08 2009
The Separation of Church and State
(5 votes, average: 5.00 out of 5)
In this day and age we hear a lot of people throwing the phrase “separation of church and state” around like it was the only defining case law for dealing with issues that pertain to religion and government. Anti-religious organizations have used it as an excuse to silence the free expression of religion, and the constitutional rights of those that they feel infringe upon the scope of their particular religious scope of thought. It got me thinking……..Why has a metaphor become so misrepresented in our nation?
No metaphor has had as much on law and policy than Thomas Jefferson’s “wall of separation between church and state”. Today, this figure of speech is accepted by many Americans as a description of the constitutionally ordered church-state arrangement, and has become the sacred icon of strict “separationist” zealots that promote a secular society in which Christian influences are systematically and decisively stripped from public life. In our own time the court systems have embraced this phrase as a virtual rule of constitutional law, even though the “phrase” is nowhere to be found in the U.S. Constitution.
Let’s explore shall we? …… Okay then, the “wall of separation between church and state” phrase actually comes from a letter written by Jefferson to the “Danbury Baptists” who were concerned that the government (namely the federal government) would be interfering in the religious affairs of the church. Jefferson responds in a letter written New Year’s Day, 1802, he states that “believing with you that religion is a matter that which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach only actions, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State “. So was Jefferson trying to say that religion has no place in public life? Consider this; Jefferson endorsed using federal funds to build churches and to support Christian missionaries working among the Indians. Jefferson’s intent was to build a wall between the national and state governments, not as some would have us believe, between the church and all civil government. In his second inaugural address delivered in March 1805, he said “in matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general [i.e., Federal] government, I have therefore undertaken on NO occasion to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies”.
The difference in Jefferson’s wall, and the “high and impregnable” wall established in 1947 (Emerson v. Board of Education), and even built higher by the modern Supreme Court, is very, very clear. We only have to look at Jefferson’s record as a public official both as Governor and as President, which shows that he initiated practices and implemented policies that are very inconsistent with wall that is being established today. The wall that has been built today is a barrier that inhibits the activities of both government and religion alike unlike the First Amendment which imposed restrictions, on civil government only.
We must face the facts that the “wall of separation between Church and State” has often been used as an expression of exclusion, intolerance, and bigotry, and has been used to silence people and communities of faith and to exclude them from participation in public life. Today the wall is the poster child of strict separationist rhetoric intolerant of religious influences in the public square, and is being used by Federal, and State courts to justify censoring religious expression in public, stripping public spaces of religious symbols, and even to the extent of wanting to remove crosses from veteran’s graves.
But alas Jefferson’s metaphor has not produced the practical solution that the wall builders intended it to, but rather has done what walls often do, obstruct the view. It has blurred our understanding of constitutional principles. Take away Jefferson’s metaphor, and the “Church and State” debate would probably be more candid and transparent, and the “separationist” movement would be forced to articulate only the assumptions and ideas of their perspective rather gloss over them with a metaphoric slogan. In a pointed criticism of the Court’s use of the metaphor, Justice William Rehnquist said that “the wall is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned”.
The wall of separation was built to keep government out of religion, not to keep religion out of government, or public life, and the high jacking of it by special interest groups and the ACLU just goes to show that we have no understanding or appreciation of our Founding Fathers and what they stood for. We can debate the words and terminology of Jefferson’s metaphor, or the constitution for that matter but the intended meanings and interpretation are found in history, and in the lives of those who wrote them. You want to know what they meant, look at how they lived it out and applied it to their life and time.
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Phrase interpreted incorrectly
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Interpretation incorrect?
Logic?
Where does interpretation intersect with validity? This post proceeds from the assumption that whatever Jefferson meant to say is the correct statement, which is not necessarily true.
The fact is that religion is no different from any other form of organization (it incorporates rank, ideology, and executive centrality); and if one wishes to make the “free speech” argument, then one must recognize the right of other groups to express their views in “public spaces” with displays of symbols.
So how soon after this “wall” is thrown out do we see people standing on the steps of SCOTUS with their fingers hanging over their jeans, and a swastika relief in stone at regional courthouses?
We have a common government, and that common government should only be displaying symbols common to all people, not just the accepted calling cards of the majority.
We do not have a “common” government, and this argument has nothing to do with the First Amendment. Where in the Constitution do you see that our government is a reflection of all people? This is a bunch of drivel. The Constitution does allow all people the right to speech and all religions the right to practice, but it does not in any way respect or reflect the opinions or values of all people. It is built on Judeo-Christian values and our founding fathers made no bones about that. You can see this in our Declaration of Independence and the Constitution itself. The wall of separation is to protect religion from Government, but it is not there to protect Government from Religion.
When you have a “living breathing” constitution that bends and molds with the times, you have dead constitution and the rule of law is gone.
Shawn, the only problem with your argument is that you can’t change history, no matter how hard you try you can’t do it. I will repeat what I said before the best interpretation, is to see how the people who penned the Constitution lived it out, and I have a feeling when you do you won’t like what you see. Not only did they support a religious framework for the founding of this country they (the federal government) also also purchased 20,000 bibles to be placed in schools,and by the way what do you think the most researched document was for the making of the Constitution? You guessed it the Bible. I really hate it for you, but you can’t change history. http://www.michaelnewdow.com/ContinentalCongress.htm
History cannot be changed, but the future may be salvaged. It is not 1787 anymore.
This country is not bound by the opinions of long-dead men who had no foreknowledge of the immense diversity that would be encountered by the society they founded. This country governs its people, it does not rule. And to govern is to serve the citizens, whether they are of the majority or the minority.
The Constitution being built on similar values to a religion does not make it a propitiation of the religion from which it is derived. The founding document is a legal one. It is law. And as stated in the first amendment to its body, the law cannot ordain a religion with political power.
You are arguing contextualism, which in itself makes the Constitution static and unchanging.
But that brings to mind the first lesson of the exit from adolescence: things change.
And yet the further we get away from the Judeo-Christian principles this country was built on, the more we deteriorate as a country and as a society
A Constitution that can be bent and molded with the times without being changed with the amending process breaks down the entire rule of law which keeps a civilized society civil. This is what we see today. We have a President and Judiciary that completely disregard their Constitutional restrictions and do whatever they want. This can only go on for so long, we will either fall into anarchy, statism, or dictatorial rule.
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In discussing issues of separation of church and state, it is critical to distinguish the “public square” from “government.” The principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. And in practice, there is plenty of religion out there in the public square; I see and hear of it daily on the street, on the radio, on the TV, on the internet, etc.
The First Amendment’s “establishment” clause constrains only the government not to promote or otherwise take steps toward establishment of religion. When an individual acts in an official capacity on a government matter (e.g., a public school teacher instructing students in the classroom), he or she should conform to the First Amendment constraints on government. When an individual participates in an official event as an individual rather than as a government agent, he or she presumably has the freedom to express religious views. While figuring out whether someone is acting in an official or private capacity in any given circumstance can be complex, recognizing the distinction is critical.
James Madison, who had a central role in drafting the Constitution and the First Amendment, understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (1817). Mindful that old habits die hard and that tendencies of citizens and politicians could and sometimes did entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he questioned whether these were “consistent with the Constitution, and with the pure principle of religious freedom.” His response: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.” What then, Madison further inquired, should be made of these various actions already taken in the nation’s then “short history” inconsistent with the Constitution? Ever practical, he answered not with a demand these actions be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].”
The First Amendment embodies the simple, just idea that each of us should be free to exercise and express his or her religious views without expecting that the government will endorse or promote his or her views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion.
Reasonable people may differ, of course, on how the principles embodied in the First Amendment should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to transform our secular government into some form of government-religion partnership should be resisted by every patriot.
Btw, this is the comment section and not the posting section. I agree almost entirely with your “comment”, however there are certain aspects of it that are stretched a little. First of all your dismissal of all the references by the founding fathers to religion within the bounds of government as simply a case of old habits dying hard is pitiful at best. We have to look at the establishment clause of the first amendment within the confines of the time in which it was written to get a proper perspective of what it meant and how to apply it today. The first amendment was written during a time that Governments of Europe had established state religions, namely the Anglican Church of England, that were not accepting of other points of view. Many of the initial settlers of the United States were here because of a lack of acceptance of their religious views by the established state religions of Europe. The establishment clause was placed there to prevent a state established religion, but it did not say that the government was not allowed to use the principles and values of a specific religion and apply it within government. Thing like a pledge of allegiance with “Under God” and legal tender with “In God we trust” are not prohibited by the establishment clause, but are principles on which the government was built and designed. For the sake of brevity in the comments section I end this now.
So you criticize my choice of words (“old habits die hard”), but ignore Madison’s point?
The legislative history of the First Amendment belies the narrow scope you would give it. The first Congress debated and rejected just such a narrow provision (actually several) and ultimately chose the more broadly phrased prohibition now found in the Amendment. As reflected in his Detached Memoranda, Madison certainly did not read the Amendment as you suggest. In keeping with the Amendment’s terms, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude Congress from enacting a statute formally establishing a national church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of formally establishing a church.
The government’s addition of the words “under God” to the pledge of allegiance in 1954 and adoption of the phrase “In God we trust” as a national motto in 1956 were mistakes, which should be corrected. Under the First Amendment, our government has no business promoting or otherwise taking steps to establish religion. The government certainly shouldn’t be proclaiming in a motto on the money it prints for us that it–or we–trust in god. That’s just not the government’s role. The unnecessary insertion of an affirmation of a god in the very pledge that our government calls on its citizens to recite in affirmation of their allegiance to our republic puts atheists and other nonbelievers in a Catch 22: Either recite the pledge with rank hypocrisy or accept exclusion from one of the basic rituals of citizenship enjoyed by all other citizens. The government has no business forcing citizens to this choice on religious grounds.
One thing I think we are in danger of doing here is just looking at one phrase here, and not looking at the context of ,as Jason said the time in which it was written and the lives of those who wrote it. Doug, you cannot just throw out the way these men lived out what they wrote, these men were very much dependent on God and on His guidance and direction in the Framing of our Constitution, the most researched document was the Bible .
Even John Jay our first ever Supreme Court Justice said this “No human society has ever been able to maintain both order and freedom; both cohesiveness and liberty apart from the moral precepts of the Christian Religion applied and accepted by all classes. Should our Republic ever forget these fundamental principles of governance, men are certain to shed their responsibilities for licentiousness and this great experiment will surely be doomed”. he even went so far as to say that “Providence has given unto our people the choice of their rulers, and it is the duty, as well as the privilege of our Christian nation to select and prefer Christians for their rulers”. And even Alexander Hamilton in a letter to James Baynard in 1802 said “I now offer you the outline of the plan they have suggested. Let an association be formed to be denominated “The Christian Constitution Society” its object to be first: The support of Christian Religion. Second: The support of the United States.” so you can’t say that they didn’t mean “In God we trust” when they said they did, This nation was founded on Christian Ideology and principles and to say it wasn’t is to totally throw out and deny history.
lorenzo,
I agree that determining the intent of the drafters may be aided by looking beyond the words of the Constitution and reviewing things pertinent to what they had in mind. If the text itself does not entirely reveal its meaning, courts may look to external aids to interpretation, primarily the legislative history as revealed in the records of the proceedings on the drafting and adopting of the Constitution; if that does not suffice to resolve the matter, they may look further afield, such as to statements by individual founders that speak of the intended meaning of this or that provision of the Constitution. When interpreting the First Amendment, the Supreme Court did just that in reviewing Jefferson’s and Madison’s statements on point. A court could, I suppose, look even further afield and take note of more generalized expressions of religiosity by individual founders. But since entirely religious founders may well have intended in the Constitution to keep government separate from religion and with good reason, what then could the court make of general expressions of piety by this or that founder? Answer: not much.
In discussing this, it is important to distinguish government from society. As you note, at the time of the founding, Christianity was a dominant religious influence in society. It remains so today, though perhaps not to the same degree. Perhaps too some of the founders even expressed preferences for American society to remain that way.
Whatever their personal religious views and whatever their preferences for society’s future, in the Constitution, the founders plainly established a secular government on the power of the people (not a diety) and said nothing substantive of god(s) or religion except in the First Amendment where the point is to confirm that each person enjoys religious liberty and that the government is not to establish religion and another provision precluding any religious test for public office. Indeed, it may well be that they chose this form of government convinced that it would afford their religion(s) the best opportunity to flourish.
I gather from what you are saying is that you believe you understand the original intent of the First Amendment of the Bill of Rights to a greater degree than the framers who penned it. If the framers intended the First Amendment to be a complete wall of separation between Church and State, then they violated their own First Amendment with frequency. Your dismissal of these so called violations is simply “old habits die hard”. James Madison the primary author of the Constitution and later the Bill of Rights himself took the oath of office as the fourth President of the United States on the Bible. According to your interpretation of the establishment clause, this would be a violation of the First Amendment which Madison himself wrote. Your interpretation also states that they established a secular government devoid of all religion. Atheism itself is a form of religion and disenfranchises those that believe in a deity based religion, and thus would also be a violation of your interpretation.
Jason,
How you could gather that is beyond me. I pointed to what Madison and Jefferson said about the intent of the First Amendment. With respect to the early actions of the government inconsistent with their view (including even some of their own actions), I pointed to Madison’s own explanation. Just as the government today struggles and sometimes fails to adhere to the Constitution, the government did then as well. I agree with Madison’s approach that we should not enshrine our mistakes as precedent, but rather minimize their damage by reversing them if possible or, failing that, at least discounting them as trifles or faults.
Secularism is not atheism.
I suppose if you truly believe that it is impossible to have a secular government that remains neutral in matters of religion, then you may regard efforts to keep church and state separate as nonsense. Unconstrained by any aim for neutrality, you may see this as one big free for all competition in which every religion vies for the prize–a government to do its bidding and promote its views.