Few metaphors in American letters have had a greater influence on law and policy than Thomas Jeffersonâs âwall of separation between Church & State.â1 In our own time, the âwall of separationâ has been accepted by many Americans as a pithy, authoritative expression of the First Amendment prohibition on laws ârespecting an establishment of religion.â Leading twentieth-century jurists embraced this figurative phrase as a virtual rule of constitutional law and as an organizing theme of church-state jurisprudence. In Everson v. Board of Education (1947), the U.S. Supreme Court was asked to interpret the First Amendmentâs nonestablishment provision. âIn the words of Jefferson,â the justices famously declared, the First Amendment âclause against establishment of religion by law was intended to erect âa wall of separation between church and State.â ⦠That wall must be kept high and impregnable. We could not approve the slightest breach.â2 The following term, in McCollum v. Board of Education (1948), Justice Hugo L. Black asserted that the justices had âagreed that the First Amendmentâs language, properly interpreted, had erected a wall of separation between Church and State.â3 The âwall of separationâ has become the locus classicus of the notion that the First Amendment mandates a strict separation between religion and the civil state.
Even at the Supreme Court, however, the metaphor has not been received uncritically. In McCollum, Justice Stanley F. Reed denounced the Courtâs reliance on the metaphor. âA rule of law,â he protested, âshould not be drawn from a figure of speech.â4 More than a decade later, in the 1962 school prayer case,
What is the source of this figure of speech, and how did this symbol of strict separation between church and state become so influential in American legal and political thought? More important, what are the consequences of its ascendancy in church-state law, policy, and discourse? What should the student of church-state relationships and the interplay between religion and civic life make of this architectural metaphor? Has it illuminated or obfuscated understandings of the prudential and constitutional relationship between church and state, the sacred and the secular? Finally, what has John Witte, Jr. contributed to our understanding of this metaphor? These are among the questions considered in this chapter.
Thomas Jefferson was inaugurated the third president of the United States on March 4, 1801, following one of the most bitterly contested elections in American history. Candidate Jeffersonâs religion, or the alleged lack thereof, emerged as a critical issue in the campaign. His Federalist foes, led by the incumbent president John Adams, vilified him as an infidel or even an atheist. The campaign rhetoric was so vitriolic that, when news of Jeffersonâs election swept across the country, housewives in New England were seen burying family Bibles in their gardens or hiding them in wells because they expected the Holy Scriptures to be confiscated and burned by the new administration in Washington.10 (As strange as this reaction sounds, these fears resonated with pious Americans who had received alarming reports of the French Revolution, which Jefferson was said to support, and the widespread desecration of religious sanctuaries and symbols in France. By the mid-1790s, the revolution in France had turned bloody and anti-Christian.)
One pocket of support for the Jeffersonian Republicans in Federalist New England was found among the Baptists. At the dawn of the nineteenth century, Jeffersonâs Federalist opponents dominated New England politics, and the Congregationalist church still enjoyed legal favor in Connecticut and Massachusetts.11 The New England Baptists, who supported Jefferson, were outsidersâa beleaguered religious and political minority in a region where a Congregationalist-Federalist axis dominated political life. As religious dissenters, the Baptists were drawn to Jefferson because of his renowned commitment to religious liberty. The Baptists were hoping the new president would bring to the nation the same spirit of religious liberty he had championed in his native Commonwealth of Virginia.
Although the Danbury Baptists had not asked the president to issue a religious proclamation, Jefferson told his advisers that he wanted to use his reply to the Baptists to address a controversy that had arisen early in his administration. The controversy concerned his refusal to continue the practice of presidents Washington and Adams and many state chief executives of designating days for public prayer, fasting, and thanksgiving.14 The president was eager to explain his position on the matter because his Federalist detractors had called for religious proclamations and then smeared him as an enemy of religion when he declined to issue them.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should âmake no law respecting an establishment of religion, or prohibiting the free exercise thereof,â thus building a wall of separation between Church & State. [A]dhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.15
What does the historical record reveal about Jeffersonâs views on the prudential and constitutional relationship between church and state? Far more has been written about Jeffersonâs church-state record than can be summarized in a short chapter, but it is worth asking whether the wall is used today in ways that its architect would recognize and endorse? Are modern constructions of the âwall of separationâ consistent with Jeffersonâs policies and practices as a public official?
Jeffersonâs record on church-state matters does not always point in the same direction. As president, he famously invoked the wall apparently to support his decision to discontinue the practice of his presidential predecessors in issuing religious proclamations. This suggests that he embraced a separationist construction of the First Amendment. Throughout his long public career, however, including two terms as president, he pursued policies incompatible with the âhigh and impregnableâ wall the modern Supreme Court has attributed to him. The same Jefferson who, as president, invoked a âwall of separationâ when declining to issue a religious proclamation also, as governor of Virginia, issued a proclamation appointing âa day of publick and solemn thanksgiving and prayer to Almighty God.â16 As a member of the Virginia legislature in the late 1770s, he is credited with framing bills that authorized âAppointing Days of Public Fasting and Thanksgivingâ and âPunishing Disturbers of Religious Worship and Sabbath Breakers.â17 Moreover, after ratification of the First Amendment and without raising constitutional objection, âJeffersonâs administration provided money [from the federal treasury] for at least one missionary school and, pursuant to a treaty, funded the construction of a Catholic Church and the
Jeffersonâs wall is often described as a representation of a universal principle on the prudential and constitutional relationship between religion and the civil state. Jeffersonâs record, to the contrary, indicates that the wall had less to do with the separation between religion and all civil government than with the separation between the national and state governments on matters pertaining to religion (such as official proclamations for days of public prayer, fasting, and thanksgiving). Recall that the same Jefferson who declined to issue a religious proclamation as president issued a religious proclamation as the governor of Virginia.19 The âwall of separationâ was a metaphoric construction of the First Amendment; and Jefferson said time and again that the First Amendment imposed its restrictions on the national government only.20 In other words, Jeffersonâs wall separated the national regime on one side from state governments and religious authorities on the other.
How did this wall, limited in its jurisdictional application, come to exert such enormous influence on American jurisprudence? Jeffersonian partisans were drawn to the political principle of separation between religion and politics in the campaign of 1800 to silence the Federalist clergy who had denounced candidate Jefferson as an infidel or atheist. In the Danbury letter, with its metaphoric formulation, Jefferson deftly transformed the political principle into a constitutional principle of separation between church and state by identifying the figurative language of separation with the text of the First Amendment. The constitutional principle was eventually elevated to constitutional law by
2 The Metaphor Enters Public Discourse
By late January 1802, Jeffersonâs letter to the Danbury Baptists began appearing in New England newspapers,22 but it soon slipped into obscurity. When was Jeffersonâs metaphor ârediscovered,â and how did it attain prominence in church-state discourse? The letter was not accessible to a wide audience until it was reprinted in the first major collection of Jeffersonâs papers, published in the mid-nineteenth century.23
The phrase âwall of separationâ entered the American legal lexicon in the U.S. Supreme Courtâs 1879 ruling in Reynolds v. United States. Opining that the missive âmay be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured,â the Court reproduced a flawed transcription of the Danbury letterâs central paragraph.24 The metaphor, it would seem, is not what drew the Court to this text. Chief Justice Morrison R. Waite, who authored the opinion, was apparently drawn to another clause in Jeffersonâs letter, but he declined to edit the lengthy sentence in which it appeared to exclude the figurative phrase. Jeffersonâs statement that the powers of civil government reach menâs actions only and not their opinions was key to the Courtâs reasoning. The Reynolds Court was focused on the legislative powers of Congress to criminalize the Mormon practice of polygamy and was apparently drawn to this passage because of the mistranscription of âlegitimate powers of governmentâ as âlegislative powers of government.â But for this erroneous transcription, the Court might have had little or no interest in the
Nearly seven decades later, in the landmark Everson case, the Supreme Court ârediscoveredâ the metaphor and elevated it to constitutional doctrine. Citing no source or authority other than Reynolds, Justice Hugo L. Black, writing for the majority, invoked the Danbury letterâs âwall of separationâ passage in support of his strict separationist construction of the First Amendment prohibition on laws ârespecting an establishment of religion.â Black did not simply reference the figurative phrase, he graphically characterized the First Amendment wall as âhigh and impregnable,â not allowing âthe slightest breach.â25 Like Reynolds, the Everson ruling was replete with references to history, especially the roles played by Jefferson and Madison in the Virginia disestablishment struggles in the tumultuous decade following independence from Great Britain. Jefferson was depicted as a leading architect of the First Amendment, even though he was in France when the measure was drafted by the first federal Congress in 1789.26
Black and his judicial brethren also encountered the metaphor in briefs filed in Everson. In a lengthy discussion of history supporting the proposition that âseparation of church and state is a fundamental American principle,â an amicus brief filed by the American Civil Liberties Union (ACLU) quoted the clause in the Danbury letter containing the âwall of separationâ image. The ACLU warned that the challenged state statute, which provided state reimbursements for the transportation of students to and from parochial schools, âconstitutes a definite crack in the wall of separation between church and state. Such cracks have a tendency to widen beyond repair unless promptly sealed up.â27
The tropeâs current fame and pervasive influence in popular, political, and legal discourse date from its rediscovery by the Everson Court. Shortly after the ruling was handed down, the metaphor began to proliferate in books and articles. In a 1949 best-selling anti-Catholic polemic, American Freedom and Catholic Power (Beacon Press), Paul Blanshard advocated an uncompromising political and legal platform favoring âa wall of separation between church and state.â28 Protestants and Other Americans United for the Separation of Church and State (today known by the more politically correct name of âAmericans
In the cases following Everson, the Supreme Court continued to cite Jeffersonâs figurative phrase frequently and favorably. Indeed, the Court essentially âconstitutionalizedâ Jeffersonâs phrase, subtly substituting his figurative language for the literal text of the First Amendment. The metaphor gained currency in not only judicial rulings but also the broader church-state discourse. Use of the metaphor peaked again during the controversies surrounding the school prayer cases of the early 1960s. The Courtâs reliance on the Jeffersonian metaphor prompted critiques of the justicesâ uses of history in general and the wall metaphor in particular.30 Justice Rehnquistâs scathing repudiation of the metaphor in Wallace v. Jaffree (1985), reinforced by several works of scholarship calling into question the Courtâs use of history,31 was followed by a slow retreat from reliance on the metaphor in First Amendment rulings. The metaphor, however, remains a popular trope in academic and polemical discourse.
3 The Trouble with Metaphors in the Law
Metaphors are a valuable literary device. They enrich language by making it dramatic and colorful, rendering abstract concepts concrete, condensing complex concepts into a few words, and unleashing creative and analogical insights. But their uncritical use can lead to confusion and distortion. At its heart, metaphor compares two or more things that are not, in fact, identical. A metaphorâs literal meaning is used nonliterally in a comparison with its subject. While the comparison may yield useful insights, the dissimilarities between the metaphor and its subject, if not acknowledged, can distort or pollute oneâs understanding of the subject. Metaphors inevitably graft onto their subjects
After two centuries, Jeffersonâs figurative phrase remains controversial. The question debated is whether the wall illuminates or obfuscates the constitutional principles it metaphorically represents.
Proponents argue that the metaphor promotes private, voluntary religion and freedom of religion in a secular polity. The wall, defenders say, graphically and concisely conveys First Amendment principles. It prevents religious establishments, discourages corrupting entanglements between civil governmental and ecclesiastical authorities, and avoids sectarian conflict among religious denominations competing for government favor and aid. An impenetrable barrier prohibits not only the formal recognition of, and legal preference for, one particular church (or sect) but also all other forms of government assistance for religious objectives. A regime of strict separation, defenders insist, is the best, if not the only, way to promote religious liberty, especially the rights of religious minorities.
Opponents counter that the graphic metaphor has been a source of much mischief because it reconceptualizesâindeed, misconceptualizesâFirst Amendment principles. Given the nature of metaphors, reliance on this extraconstitutional figure of speech as a substitute for the text of the First Amendment almost inevitably reimagines, if not distorts, constitutional principles governing church-state relationships. Although the âwall of separationâ may felicitously express some aspects of First Amendment law, it misrepresents or obscures others. Critics contend that the metaphor misrepresents constitutional principles in several important ways.
First, the trope emphasizes separation between church and stateâunlike the First Amendment, which speaks in terms of the nonestablishment and free exercise of religion. âSeparation of church and stateâ and the First Amendment concept of ânonestablishmentâ are often used interchangeably today; however, in the lexicon of the late eighteenth and early nineteenth centuries, the expansive concept of âseparationâ was not identical to the narrow institutional concepts of ânonestablishmentâ and âdisestablishment.â Many advocates of disestablishment or nonestablishment (and liberty of conscience), such as
Second, a wall is a bilateral barrier that inhibits the activities of both the civil government and religionâunlike the First Amendment, which imposes restrictions on civil government (that is, Congress) only. In short, a wall not only prevents the civil state from intruding into the religious domain but also prohibits religion from influencing civil government. The various First Amendment guarantees were entirely a check or restraint on civil government, specifically on Congress. The free press guarantee, for example, was not written to protect the civil state from the press; rather, it was intended to protect a free and independent press from control by the national government. Similarly, the religion provisions were added to the Constitution to protect religion and religious institutions from corrupting interference by the national government and not to protect the civil state from the influence of religion. As a bilateral barrier, however, the wall unavoidably restricts religionâs ability to influence civic life, and, thus, it necessarily exceeds the limitations explicitly imposed by the First Amendment. Reimagining the First Amendment as a âwall of separation,â critics say, transforms a constitutional provision intended to limit civil government into a constitutional mandate to restrict religionâs reach into public life.
In application, certain conceptions of separation have not only imposed an extraconstitutional restraint on religion but also dangerously granted the civil state de facto powers over religion. Having assumed the separation of church and state, the state has then exercised the prerogative to specify the legitimate jurisdictions of both the church and the state. The civil state, in order to determine that which is permissible or impermissible pursuant to the principle of separation, has presumed to define what is âreligionâ and what are the appropriate realm, duties, and functions of the âchurchâ in a civil society. Yale University law professor Stephen L. Carter has denounced the stateâs construction of a âsingle-sided wallâ that confines, indeed imprisons, the community of faith, but imposes few corresponding restraints on the civil stateâs ability to interfere with religion and religious institutions. The state, often acting through its judges, âdecides when religion has crossed the wall of separation.⦠Unsurprisingly, then, religion is often found to have breached the wall, whereas the state
Herein lies the danger of this metaphor, critics contend. All too often the wall is used to separate religion from public life, thereby promoting a religion that is essentially private and a state that is strictly secular. The âhigh and impregnableâ wall described in Everson and its progeny has been used to inhibit religionâs ability to inform the public ethic, deprive religious citizens of the liberty to participate in politics armed with ideas informed by their spiritual values, and infringe the right of religious communities and institutions to extend their faith-based ministries into the public square on the same terms as their secular counterparts. The wall has been used to restrain the religious voice in the public marketplace of ideas and to segregate faith communities behind a restrictive barrier.
4 Witte and the Wall
Recognizing its significance for church-state law, policy, and discourse, John Witte, Jr. has been attentive to the diverse uses and interpretations of the âwall of separation.â He has focused on the metaphor in essays and reviews,34 as well as considered its implications in more general analyses of church-state
Witte has been careful to place the rhetoric and policies of church-state separation in their appropriate historical contexts. He has surveyed conceptions of the separation principle in Western thought over the course of two millennia, giving careful consideration to how they have informed expressions of church-state separation in American political culture and jurisprudence.
Witteâs analysis of religious liberty in the American experience highlights six principles of the âessential rights and libertiesâ of religion: liberty of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and disestablishment of religion.36 These âfirst principlesâ capture the bold features and subtle distinctions of the innovative American experiment. They were featured prominently in the political discourse of the founding era, incorporated into many state and federal constitutions of the age, and âremain at the heart of the American experiment today.â37 These concepts, as Witte amply illustrates from primary sources, were invested with multiple, sometimes overlapping, meanings and layers of meaning. He readily concedes that, given the diverse theological and political perspectives and communities represented in the late eighteenth century, there was no
This sets the stage for Witteâs assessment of the separation principle, including Jeffersonâs architectural formulation of it. Not everyone who uses or endorses the language of separation agrees on its meaning. In our own time, for example, civil libertarians, secular humanists, theologically liberal mainline Protestants, and even evangelical Southern Baptists are all likely to endorse the âseparation of church and state,â but they almost certainly hold discordant views on the meaning and application of that principle to law and public policy. Witte brings much-needed clarity to the conversation by identifying and describing five distinct understandings of church-state separation in the American founding and in church-state discussions continuing to the present day.39
First, the principle of separation of church and state protects the church from the civil state. This vision of separation is concerned with, inter alia, protecting the autonomy and purity of the church (and religious societies, more generally), as well as religious exercise and expression, from control and interference by government authorities.
Second, the principle protects the state from the church. This understanding of separation arguably informed, in part, the common practice for much of American history of prohibiting clergy from holding public offices. This interpretation is reflected in our own time by federal tax laws disallowing tax-exempt religious organizations from participating in political campaigns or endorsing political candidates.40
Fourth, the principle protects âindividual states from interference by the federal government in governing local religious affairs.â43 This jurisdictional understanding, affirming federalism, denied the federal government authority over religion and protected state governments from interference by the federal government in matters pertaining to religion. For much of American history, each state was free to structure church-state arrangements in accordance with its own laws.44 State governments, in other words, could establish, disestablish, or selectively favor or disfavor specific religious sects without interference by the federal regime. Witte pushes the boundaries of the âjurisdictional viewâ even further, showing its application beyond state actors and in the service of other essential principles of religious liberty: âThe individualâs jurisdiction over religion was protected by the constitutional principle of liberty of conscience. The churchâs jurisdiction was protected by the constitutional principle[s] of free exercise and free association.â45
Fifth, the principle has been used to separate âreligion from public life altogether.â46 This strict separationist view, Witte concedes, âwas the most novel, and most controversial, understanding of separation of church and state in the
He further observes that today, unlike Jeffersonâs day, the civil state is such an expansive and âintensely active sovereignâ that a âcomplete separation is impossible. Few religious bodies can now avoid contact with the stateâs pervasive networkâ of laws, regulations, policies, and social welfare programs in carrying out their ministries.50 This makes it imperative that the modern civil state, with its expansive reach, balance separationist policies with principles of liberty of conscience, free exercise of religion, religious equality, and the like. Although the Supreme Court favored a strict separationist position in Everson and its progeny, in more recent years the Court has taken a more relaxed approach to church-state relations; and this, Witte opines, has âultimately served to enhance religious freedom in America rather than contract it.â51
runs afoul of other constitutive principles of the First Amendmentâparticularly the principles of liberty of conscience and religious equality. The [Supreme] Court must be at least as zealous in protecting religious conscience from secular coercion as protecting secular conscience from religious coercion. The Court should be at least as concerned to ensure the equal treatment of religion as to ensure the equality of religion and non-religion. It is no violation of the principle of separation of church and state when a legislature or court accommodates judiciously the conscientious scruples of a religious individual or the cardinal callings of a religious body. It is also no violation of this principle when government grants religious individuals and institutions equal access to state benefits, public forums, or tax disbursements that are open to non-religionists similarly situated.54
To do otherwise, Witte concludes, would privilege what Justice Stewart called âa religion of secularism.â55
Turning his attention to the architectural formulation of separation made famous by Thomas Jefferson, Witte notes that the âwall of separationâ was not Jeffersonâs invention. The metaphor has deep roots in Western thought, featuring in church-state discourse for at least five hundred years. There has been no consensus, however, regarding the purposes of this barrier. Some commentators have championed a wall as a prudential, indeed an essential, fixture of church-state relationships. Others have denounced walls of separation as obstacles to healthy, cooperative relations between church and state. Witte illustrates the diverse understandings and uses of the separation principle by drawing attention to various historical constructions of the wall. The examples he highlights, in addition to Jeffersonâs wall, include:
The Anabaptists, who believed they were in the world but not of the world,56 rejected the close identification of civil state and church that had been prevalent in Western Christendom since the reign of Constantine. Although they
Richard Hooker (1554â1600), the sixteenth-century Anglican divine and apologist for the Elizabethan settlement, described âwalles of separation between ⦠the Church and the Commonwealthâ in his magnum opus, Of the Laws of Ecclesiastical Polity.59 Both revelation and reason, he argued, supported the organic identity of church and state, as coextensive aspects of a unified Christian society. He believed, further, that âthe episcopal form of government was best for the Church of England, and that Church and state were two aspects of the same commonwealth, a commonwealth in which both were rightly under the monarch.â60 Hooker rejected the Puritan notion of church and commonwealth as two distinct and perpetually separated corporations, divided by âwalls of separationâ that denied the crown its divine prerogative to rule over both the church and the commonwealth.61
The seventeenth-century colonial advocate for religious liberty and founder of Rhode Island, Roger Williams (1603?â1683), championed a âhedge or wall of separationâ to safeguard the purity of Christâs church from the corrupting wilderness of the world. Williams was a spiritual or theological separatist whose relentless quest was to separate the true church from theological impurity and the unclean world. He adamantly rejected the idea of a national church because it improperly combined regenerate and unregenerate members of society. Where there was an established church, Williams instructed
The eighteenth-century Scottish radical Whig reformer, James Burgh (1714â1775), advocated building âan impenetrable wall of separation between things sacred and civilâ in order to prevent the church from âgetting too much power into her hands, and turning religion into a mere state-engine.â63 Burgh was a man of faith, as well as a man of reason. He brought to his writings a dissenterâs zeal for religious toleration and a profound distrust of established churches. Burgh thought religion was a matter between God and oneâs conscience; and he contended that two citizens with different religious views are âboth equally fit for being employed, in the service of our country.â64 He warned that state establishments of religion corrupt church officers (whose comfortable reliance on the civil state encourages pride, indolence, and impiety) and ultimately destroy true spirituality and profane religion. For this reason, Burgh proposed building âan impenetrable wall of separation.â65
These examples come from different eras; and each of these walls, as Witte points out, served a purpose different from the others.
John Witte reminds us that âseparation of church and stateâ and its attendant âwall of separationâ formulation have long been a part of Western thought and discourse. Although mindful of the criticisms of âseparationism,â he makes a compelling case that the separation principle has made a valuable contribution to religious liberty in the American experience. He explicates the principleâs multifarious understandings and applications in church-state law, policy, and discourse, acknowledging that some applications have protected private and public religion and others have inappropriately restricted religion in public life. Benjamin Cardozo once counseled: â[m]etaphors in law are to be narrowly watched.â66 Witte similarly urges Americans to be attentive to both the uses and abuses of Jeffersonâs figurative language. Moreover, the separation principle, he argues, must be construed in conjunction with other essential principles of religious liberty, especially liberty of conscience, free exercise of religion, and religious equality.
Thomas Jefferson to the Danbury Baptist Association, Jan. 1, 1802, in The Papers of Thomas Jefferson, ed. Julian P. Boyd et al., 45 vols. to date (Princeton, NJ: Princeton University Press, 1950â), 36:258 [hereinafter Papers of Jefferson].
Everson v. Board of Education, 330 U.S. 1, 16, 18 (1947).
McCollum v. Board of Education, 333 U.S. 203, 211 (1948).
McCollum, 333 U.S. at 247 (Reed, J., dissenting).
Engel v. Vitale, 370 U.S. 421, 445â446 (1962) (Stewart, J., dissenting).
Abington School District v. Schempp, 374 U.S. 203, 309 (1963) (Stewart, J., dissenting).
Wallace v. Jaffree, 472 U.S. 38, 106, 107 (1985) (Rehnquist, J., dissenting).
Zelman v. Simmons-Harris, 536 U.S. 639, 686 (2002) (Stevens, J., dissenting).
Carson v. Makin, 596 U.S. __, ___ (2022) (Sotomayor, J., dissenting).
Dumas Malone, Jefferson and His Time, vol. 3, Jefferson and the Ordeal of Liberty (Boston: Little, Brown and Co., 1962), 481; David Saville Muzzey, Thomas Jefferson (New York: Charles Scribnerâs Sons, 1918), 207â08; and Albert Jay Nock, Jefferson (New York: Harcourt, Brace and Co., 1926), 238.
See Robert J. Imholt, âConnecticut: A Land of Steady Habits,â in Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776â1833, ed. Carl H. Esbeck and Jonathan J. Den Hartog (Columbia: University of Missouri Press, 2019), 327â50; and John Witte, Jr. and Justin Latterell, âThe Last American Establishment: Massachusetts, 1780â1833,â in Esbeck and Den Hartog, Disestablishment and Religious Dissent, 399â424.
The story of Jeffersonâs correspondence with the Danbury Baptist Association is recounted in Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: New York University Press, 2002).
The Danbury Baptist Association to Thomas Jefferson, Oct. 7, 1801, in Papers of Jefferson, 35:407â08.
See Jefferson to Levi Lincoln, Jan. 1, 1802, in Papers of Jefferson, 36:256â57.
Jefferson to the Danbury Baptist Association, Jan. 1, 1802, in Papers of Jefferson, 36:258.
âProclamation Appointing a Day of Thanksgiving and Prayer,â Nov. 11, 1779, in Papers of Jefferson, 3:178.
Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI (Richmond, Va.: printed by Dixon & Holt, 1784), 59â60; Papers of Jefferson, 2:555â56. These bills were part of a legislative package in Virginiaâs revised code that included Jeffersonâs âBill for Establishing Religious Freedom.â All three bills were apparently framed by Jefferson and sponsored in the Virginia legislature by James Madison. See Daniel L. Dreisbach, âA New Perspective on Jeffersonâs Views on Church-State Relations: The Virginia Statute for Establishing Religious Freedom in Its Legislative Context,â American Journal of Legal History 35 (1991): 172â204.
Nathan S. Chapman, âForgotten Federal-Missionary Partnerships: New Light on the Establishment Clause,â Notre Dame Law Review 96, no. 2 (2020): 697.
In matters of Religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general [that is, 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 & discipline of the state or church authorities acknowledged by the several religious societies.
Jefferson, Second Inaugural Address, Mar. 4, 1805, in Papers of Jefferson, 45:654. In a letter to the Reverend Samuel Miller in early 1808, Jefferson sounded the same theme: âCertainly no power to prescribe any religious exercise ⦠has been delegated to the general [that is, federal] government. It must then rest with the states, as far as it can be in any human authority.â Jefferson to the Reverend Samuel Miller, Jan. 23, 1808, in Thomas Jefferson: Writings (New York: Library of America, 1984), 1187.
See, for example, âJeffersonâs Fair Copyâ of âThe Kentucky Resolutions of 1798,â before Oct. 4, 1798, in Papers of Jefferson, 30:544â45.
See John Witte, Jr., âThat Serpentine Wall of Separation,â Michigan Law Review 101, no. 6 (2003): 1869â1905, at 1903.
See, for example, American Citizen and General Advertiser (New York), Jan. 18, 1802, 2; American Mercury (Hartford, CT), Jan. 28, 1802, 3; The Centinel of Freedom (Newark, NJ), Feb. 23, 1802, 3; Constitutional Telegraphe (Boston), Jan. 27, 1802, 2; Independent Chronicle (Boston), Jan. 25, 1802, 2â3; New Hampshire Gazette (Portsmouth), Feb. 9, 1802, 2; Rhode-Island Republican (Newport), Jan. 30, 1802, 2; Salem Register, Jan. 28, 1802, 1; and The Sun (Pittsfield, MA), Feb. 15, 1802, 4.
The Writings of Thomas Jefferson, ed. Henry A. Washington, 9 vols. (Washington, DC: Taylor and Maury, 1853â54), 8:113â14. Virtually all twentieth-century anthologies of Jeffersonâs works reproduced Washingtonâs flawed transcription of the Danbury letter.
Reynolds v. United States, 98 U.S. 145, 164 (1879).
Everson, 330 U.S. at 18.
See Everson, 330 U.S. at 13.
Brief of the American Civil Liberties Union as Amici Curiae at 8, 12, 34, Everson v. Board of Education, 330 U.S. 1 (1947).
Paul Blanshard, American Freedom and Catholic Power (Boston: Beacon Press, 1949), 305.
Joseph Martin Dawson, Separate Church and State Now (New York: Richard R. Smith, 1948), Appendix B, 209.
See Daniel L. Dreisbach, âEverson and the Command of History: The Supreme Court, Lessons of History, and Church-State Debate in America,â in Everson Revisited: Religion, Education and Law at the Crossroads, ed. Jo Renee Formicola and Hubert Morken (Lanham, MD: Rowman and Littlefield, 1997), 23â57.
See, for example, Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982); and Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002).
Stephen L. Carter, Godâs Name in Vain: The Wrongs and Rights of Religion in Politics (New York: Basic Books, 2000), 79â80.
Ibid., 78.
See, for example, Witte, âThat Serpentine Wall of Separationâ; Witte, âThe New Freedom of Public Religion: Thomas Jeffersonâs metaphor of âa wall of separation between church and stateâ has become for many the source and summary of American religious freedom,â Sightings (Martin Marty Center, The University of Chicago Divinity School, Oct. 9, 2003); Witte, âFacts and Fictions about the History of Separation of Church and State,â Journal of Church and State 48, no. 1 (2006): 15â46; Witte, âChurch and State: Exploring the Superstitions behind the Wall of Separation,â The Lutheran (Sep. 2008): 14â18; Witte and Justin J. Latterell, âBeyond the Separation of Church and State in America,â Oasis 14 (2012): 73â78; and Witte, âThe Shifting Walls of Separation Between Church and State in the United States,â in The Most Sacred Freedom: Religious Liberty in the History of Philosophy and Americaâs Founding, ed. Will R. Jordan and Charlotte C. S. Thomas (Macon, GA: Mercer University Press, 2016), 103â20. See also Witte, âThe Metaphorical Bridge Between Law and Religion,â Pepperdine Law Review 47, no. 2 (2020): 435â62 (discussion of metaphors in the law).
See, for example, Witte, âThe Theology and Politics of the First Amendment Religion Clauses: A Bicentennial Essay,â Emory Law Journal 40, no. 2 (1991): 489â507; Witte, âThe Essential Rights and Liberties of Religion in the American Constitutional Experiment,â Notre Dame Law Review 71, no. 3 (1996): 371â445; Witte, âFrom Establishment to Freedom of Public Religion,â Capital University Law Review 32, no. 3 (2004): 499â518; and Witte, âBack to the Sources? Whatâs Clear and Not So Clear about the Original Intent of the First Amendment,â Brigham Young University Law Review 47, no. 4 (2022): 1303â83. See also John Witte, Jr., Joel A. Nichols, and Richard W. Garnett, Religion and the American Constitutional Experiment, 5th ed. (Oxford: Oxford University Press, 2022); and T. Jeremy Gunn and John Witte, Jr., eds., No Establishment of Religion: Americaâs Original Contribution to Religious Liberty (Oxford: Oxford University Press, 2012).
John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties, 1st ed. (Boulder, CO: Westview Press, 2000), 37; and Witte, âBack to the Sources?,â 1308â17.
Religion and the American Constitutional Experiment, 1st ed., 37.
See Witte, âShifting Walls,â 104. See also Witte, âThat Serpentine Wall of Separation,â 1904.
Witte, âShifting Walls,â 104â15; âFacts and Fictions,â 28â34; and âThat Serpentine Wall of Separation,â 1889â91.
Witte, âShifting Walls,â 108.
Ibid., 108â09.
Ibid., 109. See also Witte, âThat Serpentine Wall of Separation,â 1896â97.
âShifting Walls,â 110.
The Supreme Court incorporated the First Amendment free exercise and nonestablishment of religion provisions into the Fourteenth Amendmentâs due process of law clause in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) and Everson v. Board of Education, 330 U.S. 1, 15 (1947), respectively, thereby making these provisions applicable to state and local authorities.
Witte, âThat Serpentine Wall of Separation,â 1891.
Witte, âShifting Walls,â 111.
Ibid., 112.
Ibid., 104.
Witte and Latterell, âBeyond the Separation of Church and State in America,â 73â78.
Witte, âFrom Establishment to Freedom of Public Religion,â 517.
Witte, âShifting Walls,â 116.
Ibid., 117.
Ibid., 117â18.
Ibid., 119.
Abington School District, 374 U.S. at 313 (Stewart, J., dissenting).
Anabaptists took to heart biblical admonitions that Christians should âbe not conformed to this worldâ (Romans 12:2) but remain âseparateâ from the world and its temptations. See also Schleitheim Confession of Faith (1527), art. 6.
Hans J. Hillerbrand, âAn Early Anabaptist Treatise on the Christian and the State,â Mennonite Quarterly Review 32 (1958): 30â31.
See Witte, âFacts and Fictions,â 21â22; âThat Serpentine Wall of Separation,â 1881â82; and Religion and the American Constitutional Experiment, 1st ed., 15. Witte indirectly references a letter from Menno Simons to âJ.V.â [perhaps Johannes Voetius, a Dutch jurist], December 1548, cited in Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State, 73.
Richard Hooker, Of the Laws of Ecclesiastical Polity: Books VI, VII, VIII, ed. P. G. Stanwood, vol. 3, of The Folger Library Edition of The Works of Richard Hooker, ed. W. Speed Hill (Cambridge, MA: Belknap Press of Harvard University Press, 1981), 320.
Kenneth Scott Latourette, A History of Christianity (New York: Harper and Brothers, 1953), 812.
See Witte, âFacts and Fictions,â 25.
Roger Williams, âMr. Cottonâs Letter Lately Printed, Examined and Answered,â in Perry Miller, Roger Williams: His Contribution to the American Tradition (1953; reprinted in New York: Atheneum, 1962), 98.
[James Burgh], Crito, or Essays on Various Subjects, 2 vols. (London, 1766, 1767), 2:119 (emphasis in the original); Crito, 1:7.
Crito, 2:68.
Crito, 2:119 (emphasis in the original). See generally Witte, âFacts and Fictions,â 27â28. Jeffersonâs wall is most similar to Burghâs, and it is the wall Jefferson is most likely to have encountered in his reading. Although he might have encountered Hookerâs wall in his reading, it is unlikely that he was familiar with Mennoâs or Williamsâs uses of the metaphor.
Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).