Understanding That “Wall”

Wherever a community attempts to erect anything that can be remotely associated with religious overtones, especially if Christian in nature, the ACLU and Freedom From Religion fanatics are sure to follow, demanding the offending (to them) display be removed immediately. Their primary objection being that, in their view, any display on public property runs contrary to the establishment clause of the First Amendment, and violates the “Wall of Separation” referred to by one no less notable than Thomas Jefferson himself.

The problem with that argument lies in their misunderstanding of that phrase “wall of separation” in the context which Jefferson used it in his letter to the Danbury Baptists. So, what is that misunderstanding? How did it come about? What was Jefferson’s actual intent?

For answers, let us turn to an excellent piece by Bill Fortenberry, “What Did Jefferson Mean by the Phrase Wall of Separation?

When considering Jefferson’s famous letter to the Danbury Baptists, most people only consider how the phrase “wall of separation” sounds to our modern ears.  To us, this phrase sounds as if it is describing an impenetrable impasse which stands between our nation’s religious institutions and her political institutions.  Consider, for example, the following opinion of Supreme Court Justice Felix Frankfurter in McCollum v. Board of Education:

“Separation means separation, not something less. Jefferson’s metaphor in describing the relation between Church and State speaks of a ‘wall of separation,’ not of a fine line easily overstepped.”

Justice Frankfurter’s opinion sounds perfectly reasonable to most of those living in the twenty-first century, but it is not consistent with the way that this phrase was understood by our forefathers.

Fortenberry goes on to explain the history and common usage of the phrase “wall of separation” long before Jefferson penned those words.

The phrase “wall of separation” has a very lengthy history in the Judeo-Christian world view.  It is a reference to the wall which separated between the Jewish and the Gentile worshipers in the temple at Jerusalem, and in Ephesians 2:14, Paul refers to this wall being symbolically broken down by Christ when He died on the cross.  This is almost the exclusive usage of this phrase in the literature prior to Jefferson’s letter.

The phrase “wall of separation” was never construed to mean an impenetrable division prior to Justice Frankfurter’s very narrowly defined interpretation, but rather an injunction against union.

In the Christian era, following Paul’s symbolic usage, the term “wall of separation” came to be used as a figure of speech for anything which prevented complete union between two groups.  This usage can be seen with great clarity in James Durham’s “Dying Man’s Testament to the Church of Scotland” published in 1740.

“In such Practices as are opposite and infer Division in the Cases mentioned, there can be no Union or Communion expected, as we see in all the Cases where such have been practised, as of the Novatians, Donatists, and such like; there may be more or less Heat and Bitterness betwixt Men that differ so:  But there cannot be Union, because such Determinations and Practices do draw a Line, and build a Wall of Separation betwixt the one and the other, and so makes one Side to be accounted as not of the same Body.”

The “wall of separation” was used in reference to many types of division. From the geo-political:

But uses of this phrase were not limited to religious writings.  It was also used on multiple occasions to describe King James’ successful union of England and Scotland.

to the naturally occurring:

And, of course, I cannot fail to mention that Benjamin Franklin once used this phrase to refer to the imaginary boundary between fresh water and salt water at the mouth of a river.

Fortenberry concludes with a truth most have understood from the begining, despite protestations from anti-religion zealots.

Thus we can see from the historical understanding of this phrase that when Jefferson wrote of the “wall of separation between church and state,” he was not referring to a completely impassible barrier as Justice Frankfurter supposed.  He was using a commonly understood phrase to describe the fact that the First Amendment prevented the church and the state from achieving a complete union in America.  They would always remain distinct entities, and the President of our nation would never be, as Jefferson described it, “the legal head of its church.”  This was the true intent of Jefferson’s claim, and we would be fortunate indeed if this intent were once again to be realized among us today.

Dennis P. O’Neil

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9 Responses to Understanding That “Wall”

  1. WTXGunRunner says:

    Salt, this one caught my attention. Really good article. It just makes one think about stuff. With everything Jefferson said, and how it has been interpreted over the years, just makes me think that how did we get to the point we are today? Hmm, “literary license”, I dunno, but when he said those words I would be willing to be that he NEVER saw translations that are so rampant today.

    ‘ and the President of our nation would never be, as Jefferson described it, “the legal head of its church.” ‘

    should never have been SO mis-interpreted, and allowed, to be turned into what we have going on today in my wonderful country. NEVER did he envision, I don’t think, that the Prez of the nation would be the “legal” head of EVERYTHING (Church included, sadly). Oh my. Translation has lost/changed SO much, in this case. Good attention getting piece. TY

  2. Buck says:

    I’m not sure just when the SCOTUS ceased being a referee for Constitutional questions and became promoters of progressive ideas and the bench legislators of today but FDR ‘packed’ the court with judges sympathetic to his causes as did Eisenhower with his political appointment of Earl Warren. So today we have a high court of nine who cannot even distinguish between an unconstitutional penalty for not purchasing an unconstitutionally mandated product and an unconstitutional tax originating in the Senate.

  3. Clyde says:

    Damn shame today’s political hacks cannot understand plain English. WHAT the HELL is so hard about ANYTHING in the Constitution to understand? It does NOT need interpretation. It does not need ” nuance”. It is what it is.

  4. Mrs AL says:

    This is important for folks to understand, Saltwater. It is my sincere hope that a lot of folks who believe in the mythical ‘wall of separation’ read this and even do more digging in their own.

    Great post.

  5. Thanks for spreading the word, Saltwater. I’m looking forward to reading more on this site.

  6. Crawfish says:

    “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof”
    Your local Town Council is not Congress. None of their actions make a federal law. A Manger Scene at the Town Hall is not a federal law, but it is the free exercise of religion.
    Any court that disagrees has lost all legitimacy, and therefore the decisions of that court are null and void.

  7. BrianR says:

    Actually, I think it’s instructive to understand the entire context of Jefferson’s use of the phrase, which I don’t see here anywhere.

    The Danbury, Connecticut Baptist Congregation had written Jefferson about their fears that they would be barred from participating as a group in the political arena because of their religious convictions, which differed from the majority view prevalent there at the time.

    Jefferson wrote back reassuring them that their fears were baseless as a “wall of separation between church and state” prevented the government from outlawing their — or any other — religious group from practicing as they see fit, including political advocacy.

    Naturally, in the intervening time, that phrase has been completely turned on its head, in what passes for a “mind” in leftists, to now mean exactly the opposite of what Jefferson actually wrote.

  8. dougindeap says:

    First, we should take a step back and observe that the Supreme Court’s recognition of the Constitution’s separation of church and state is not, as is supposed by some, predicated solely or even largely on Jefferson’s letter to the Danbury Baptists. That notion has been furthered by some who suppose that if they can just interpret Jefferson’s letter to their liking, they can reinterpret the Constitution accordingly. Simplistic sophistry.

    Separation of church and state is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the first place, the Supreme Court has thoughtfully, authoritatively, and repeatedly decided as much; it is long since established law. In the second place, the Court is right. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

    Second, while one might survey how others have used the words “wall” and “separation” in various contexts (none, naturally, remotely related to the Constitution) through history, endeavor to discern and describe their various intended meanings, and suppose that Jefferson was influenced by those earlier uses of the words and intended something similar in the context of his letter to the Danbury Baptists, that exercise piles speculation on speculation and, in the end, sheds little light on the founders’ intent in the Constitution.

    It is more revealing, I think, to consider Jefferson’s words in the context in which he used them. The very reason the Danbury Baptists wrote to Jefferson was that they feared their free exercise of religion might be compromised by Connecticut’s established Congregationalism. In his reply, Jefferson (1) “contemplated with sovereign reverence that act of the whole American people which declared that their [i.e., the federal] legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State” and (2), while acknowledging that he lacked any authority to change state law, expressed his support for the then growing political disestablishment movement (which ultimately succeeded in disestablishing Connecticut’s religion in 1818 and all other state religions by the 1830s), saying that “[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 . . . .”

    In addition, since Jefferson was speaking in that letter about the Constitution, and not the sundry philosophical, religious, or hydrological subjects addressed by those mentioned in your historical tour, a more straightforward way to assess what he had in mind when speaking of the wall of separation between church and state built by the Constitution is to see what else he said and did with respect to the Constitution. Notably in that regard, he pointedly refrained from issuing religious proclamations as President for the very reason that he thought the Constitution forbade it. He also closely aligned himself with Madison in such matters, and Madison’s views are, if anything, expressed in even plainer terms than Jefferson’s.

    Third, it should not be supposed that Justice Frankfurter in saying that the Constitution’s wall of separation is not “a fine line easily overstepped” had in mind “a completely impassible barrier” as you suppose. It bears noting in this regard that while all nine justices read the Constitution to separate church and state in the Everson decision, they split five-four in how to apply that constitutional principle to the facts of the case, and the majority ruled that it did not preclude state funding of transportation of students to parochial schools. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not). Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

    While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, 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 government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.