Build­ing the wall: Jef­fer­son and the First Amend­ment’s re­li­gion clauses

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Bar­bara A. Perry Bar­bara A. Perry, Ph.D., is di­rec­tor of pres­i­den­tial stud­ies and the White Bur­kett Miller Cen­ter pro­fes­sor of ethics and in­sti­tu­tions at the Univer­sity of Vir­ginia’s Miller Cen­ter. She is a for­mer Supreme Court Fel­low. Fol­low her o

Just up the moun­tain from where I sit at the UVA’s Miller Cen­ter lies the fi­nal rest­ing place of the univer­sity’s founder, Thomas Jef­fer­son. The obelisk that he de­signed to mark his gravesite at Mon­ti­cello lists the three ac­com­plish­ments of which he was proud­est: au­thor­ing the Dec­la­ra­tion of In­de­pen­dence, es­tab­lish­ing the Univer­sity of Vir­ginia, and draft­ing the Vir­ginia Statute for Re­li­gious Free­dom.

His col­lab­o­ra­tion with neigh­bor and friend, James Madi­son, to im­ple­ment the re­li­gious free­dom law in 1786 pro­vided part of the foun­da­tion for the First Amend­ment’s guar­an­tees that “Congress shall make no law re­spect­ing an es­tab­lish­ment of re­li­gion or pro­hibit­ing the free ex­er­cise thereof.”

Although it was Madi­son, the Fa­ther of the Con­sti­tu­tion, who also penned the first 10 Amend­ments that we know as the Bill of Rights, Jef­fer­son’s 1802 in­ter­pre­ta­tion of the First Amend­ment’s re­li­gion clauses has had a last­ing im­pact on church-state is­sues.

When the Dan­bury (Con­necti­cut) Bap­tist As­so­ci­a­tion re­quested that Pres­i­dent Jef­fer­son de­clare a day of fast­ing to rec­on­cile the na­tion af­ter the par­tic­u­larly ac­ri­mo­nious and di­vi­sive 1800 pres­i­den­tial cam­paign, Jef­fer­son de­murred, ex­plain­ing to the Bap­tists: “Be­liev­ing with you that re­li­gion is a mat­ter which lies solely be­tween man and his God, that he owes ac­count to none other for this faith or his wor­ship, that the leg­isla­tive pow­ers of gov­ern­ment reach ac­tions only, 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.”

Jef­fer­son’s sim­ple metaphor be­came a main­stay of mod­ern church-state ju­rispru­dence in the 1940s, via Pres­i­dent Franklin Roo­sevelt’s first Supreme Court nom­i­nee, Jus­tice Hugo Black. FDR ce­mented the Jef­fer­son im­age in the Amer­i­can mind by suc­cess­fully ad­vo­cat­ing for a mon­u­ment to him, which FDR proudly ded­i­cated in 1943 on the Ti­dal Basin in Wash­ing­ton.

Four years later, Black, who shared many of Jef­fer­son’s re­li­gious and philo­soph­i­cal at­ti­tudes, in­voked the wall imagery in the 1947 case of Ever­son v. Board of Ed­u­ca­tion of Ewing (N.J.) Town­ship. Although he up­held New Jersey’s re­im­burse­ment of bus fare to par­ents of parochial school stu­dents, Black’s ma­jor­ity opin­ion de­fined his view of church-state sep­a­ra­tion by ap­ply­ing the Jef­fer­so­nian lan­guage of his 1802 let­ter to the Dan­bury Bap­tists. “In the words of Jef­fer­son,” Black wrote, “the clause against es­tab­lish­ment of re­li­gion by law was in­tended to erect a ‘wall of sep­a­ra­tion be­tween church and state.’” In­deed, Jef­fer­son’s ver­biage, as ap­plied by Jus­tice Black, is prob­a­bly more fa­mil­iar to the gen­eral pub­lic than the First Amend­ment’s ac­tual lan­guage.

Jef­fer­son was a mas­ter ar­chi­tect of a va­ri­ety of lit­eral walls. His “Aca­dem­i­cal Vil­lage,” as he la­beled UVA, is bounded by tall walls, short walls, walls with gates, and ser­pen­tine walls. The lat­ter, only one brick thick to save on sparse build­ing ma­te­ri­als, are wavy, not straight, in or­der to en­sure strength. Jus­tice Robert Jack­son noted that they sym­bol­ize a wall of sep­a­ra­tion be­tween church and state that might be un­du­lat­ing, rather than uni­form.

As with all con­sti­tu­tional in­ter­pre­ta­tion, there is no una­nim­ity on the mean­ing of Madi­son’s First Amend­ment re­li­gion clauses or Jef­fer­son’s metaphor. Some jus­tices have fol­lowed Black’s strict sep­a­ra­tionism. Oth­ers have em­braced the op­po­site view that the wall the­ory comes dan­ger­ously close to vi­o­lat­ing the Free Ex­er­cise clause, and there­fore gov­ern­ment must ac­com­mo­date re­li­gion, as long as it does not ex­act sup­port for a state de­nom­i­na­tion. Land­ing squarely in the mid­dle are jus­tices who ar­gue for neu­tral­ity: the gov­ern­ment can nei­ther pro­mote nor in­hibit re­li­gion and must not be­come ex­ces­sively en­tan­gled with it.

Near the end of his life, as he wrote his au­to­bi­og­ra­phy, Jef­fer­son re­called that the de­bate over his re­li­gious free­dom statute proved that “its pro­tec­tion of opin­ion was meant to be uni­ver­sal.” An amend­ment to the bill was pro­posed to re­fer to Je­sus Christ as the “holy au­thor of our re­li­gion.” A ma­jor­ity of Vir­ginia leg­is­la­tors re­jected it, prov­ing to Jef­fer­son that “they meant to com­pre­hend within the man­tle of its pro­tec­tion the Jew and the Gen­tile, the Christian and Ma­hometan, the Hin­doo and in­fi­del of ev­ery de­nom­i­na­tion.”

Re­cently, 500 stu­dents at Jef­fer­son’s univer­sity stood and cheered Khizr Khan af­ter he spoke of Amer­ica’s great­ness in wel­com­ing him, a Pak­istani Mus­lim, to its shores. On this 225th an­niver­sary of the Bill of Rights, the Jef­fer­so­nian her­itage of re­li­gious free­dom, em­bod­ied in the First Amend­ment, en­dures — an es­pe­cially im­por­tant legacy in an in­creas­ingly di­verse 21st cen­tury Amer­ica.

Although it was Madi­son, the Fa­ther of the Con­sti­tu­tion, who also penned the first 10 Amend­ments that we know as the Bill of Rights, Jef­fer­son’s 1802 in­ter­pre­ta­tion of the First Amend­ment’s re­li­gion clauses has had a last­ing im­pact on church-state is­sues.

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