Does 'Separation of Church and State' Really Exist?

-By Warner Todd Huston

Secularists today have a catch phrase that they use like a club against religion in America. That club is named "The Separation of Church and State".

So many Americans have heard the phrase that they think it is one actually written right into the Constitution of the United States. Those who are more learned on the subject realize it is not. In fact, those who are learned on the subject know that it wasn't mentioned in any law, or even in the halls of Congress, until long after the Constitution was written. In fact, there was not much attention paid to the phrase at all until after Thomas Jefferson, the originator of the phrase, was long dead.

Not even the Supreme Court paid it much attention until the 1940s, so this “wall of separation” issue is not one that hails from the early Republic with the same meaning as it does today. Our Founders had very different ideas about religion and government, ideas that were not nearly as simple as the stark black or white assumptions of the activists of today.

The Danbury Letter

The man who initially wrote the phrase, Thomas Jefferson, wrote it in an 1802 letter to a congregation of Baptist churchmen from Danbury, Connecticut. Only elected president of the United States but two years preciously, (1800 – 1808) Jefferson was responding to a letter sent him by the Danbury church members who were attempting to get his support for their struggle against the state's somewhat oppressive religious requirements for certain rights in that state -- not an unusual practice in the states at that time. While Jefferson's letter only obliquely addressed the Baptist's concerns, more importantly it addressed the Federal position on establishing a national religion because Jefferson’s reply was focused on the Federal issue, not that of the states.

In his short letter, Jefferson said, "... 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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, ..."

(See full text HERE)

Jefferson used the words "act of the whole American people" and "supreme will of the nation" for a very specific reason. While he obliquely seemed to be supportive of the Baptist's plight, he did not give them direct support for overturning Connecticut's state laws just on his say-so. Jefferson restricted his response to the Federal (or National) position, distancing himself from being seen to talk badly about the state's laws. After all, as president of the United States, Jefferson had no power to alter a state’s Constitution. Worse, should a letter he had written attacking a state’s Constitution on an issue that was commonly extent in most of the Union become public, it could lead to a messy backlash that Jefferson did not need after the tumultuous and vicious presidential campaign of 1800.

Lastly, it should be remembered that Jefferson already had an unsavory reputation as an irreligious, heathen as the charge was leveled against him during the contentious 1800 campaign. Jefferson knew that every state in the Union (except Rhode Island) had a state sponsored religion since before the days of the Revolution, so by, relegating himself to the settled national issue, he could not easily be accused of more atheist sentiments.

So, what does this mean to the issue of "separation of church and state" for today's argument? It means that Jefferson's letter should not be used by anti-religionists to support their position. Jefferson was clearly saying that religious issues were in the various state's area of influence and control, not his as leader of the Federal Union. Unfortunately, today’s anti-religionists who wish to eliminate religion in the states as well as the Federal Union illegitimately use Jefferson’s words in their cause misconstruing Jefferson to say that all religion should be eliminated from government.

A true reading of Jefferson’s letter would tend to undermine the secularists who imagine that Jefferson was saying in the Danbury letter that all government should be separated from religion because he made no effort to say that the states should emulate the Federal government's separation. After all, an "act of the whole American people" refers to those acts made concerning rules for the Federal Union, not those of the individual states.

In summation, Jefferson was addressing the separation of powers as much as he was of that of the Federal government and religion.

Jefferson’s Danbury letter, of course, was just one man’s opinion and, to be sure, it was one made more to get someone off his back with a short address than one of any detailed discussion of the issue. But he was far from the only Founder to have considered the issue of religion, society, and the state.

Other Founders

Their own personal religious practices aside, the Founders had an intense desire to see religion observed by the people, but where the Founder’s brilliance lay was in an insistence for freedom of religious expression, not in a squelching of same. James Madison, who addressed that subject many times, wrote that, "Among the features peculiar to the political system of the United States, is the perfect equality of rights which it secures to every religious sect."

Of course, Madison was quite explicit in his thoughts that government should not operate or directly run a religion, yet he was equally as insistent that religious observance was a very important aspect of republicanism. To expect that the same man who would say such things would advocate a total elimination of public religion just doesn't logically follow.

The Founders were as worried about virtue in the people as they were for their liberty and freedom as it turns out. Here are just a few more quotes as grist for the mill for discussion.

Benjamin Rush

"I proceed...to enquire what mode of education we shall adopt so as to secure to the state all the advantages that are to be derived from the proper instruction of youth; and here I beg leave to remark, that the only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments."

George Washington

"Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."

And one more from James Madison,

"The belief in a God All Powerful wise and good, is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters and capacities impressed with it."

With these few quotes (and there are many, many others) we see that the Founders desired the people to be led by religion. And, to be sure, the religion they assumed would play a leading role were the various forms of Christianity as existing in the Union at the time. So, we can easily establish that the Founders weren’t anti-religion, that they desired religions to be included in American life, and that Christianity served as a necessary foundation upon which to build a civil society.

But what did it all really mean for the Constitution? For a fuller discussion of the issue we can turn to Supreme Court Associate Justice Joseph Story's writings.

Associate Justice Joseph Story

Justice Story was born in 1779 and became an Associate Justice of the Supreme Court in 1811 after having previously been a distinguished politician from Massachusetts. He figured prominently later in the era of the John Marshall Court as the Supreme Court solidified its position as presumed final arbiter of Constitutionality of laws passed by Congress.

One of the things he is remembered for the most by posterity is his exposition on the Constitution. Story's "Commentaries on the Constitution of the United States" (3 vols., 1833) is still widely looked upon as the standard treatise on the subject of the Constitution of the United States. This treatment has been standard reading for law students, Constitutional historians, and students of civil government for 173 years and has served as a chief reference in some of the best schools for generations. There is no question that Story's work is considered authoritative and widely accepted.

It should be noted that Story’s able commentaries on the Constitution were published in 1833 and were used as an authoritative textbook for study of the law and the Constitution all the way until our own times. As a measuring stick, it should be noted that the last of the Founders, James Madison, wouldn’t pass away until 1836, three years after the publishing of Story’s work. So, Story’s era was still intimately connected to that of those who framed the Constitution. Story’s commentaries were not viewed as revolutionary, or radical in any way.

1st Amendment to the Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To set the stage, we must first ascertain what Mr. Story and the Founders before him envisioned what the role of religion in society, as well as in government, should be? We must review more than their thoughts on the place of religion and the Constitution to get an informed idea of what the Founders desired. Should we concern ourselves solely with their thoughts on religion and the Federal Constitution we give ourselves an incomplete picture of their thoughts on the matter and this tends to horribly skew the debate in too simplistic a direction.

That in mind we find that Mr. Justice Story went on at great length about the place of religion in government arriving at a point far from saying religion had no right or place to intermingle with government.

In one of his first few paragraphs on the First Amendment and the religion clause therein, Story said, “Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.”

This straight forward paragraph reveals that Story was hardly a man who imagined government and religion should be alienated one from the other! Story began with the basic assumption that the Christian religion was indispensable to a good society, echoing the thoughts of the Founders.

“…the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; -- these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience.”

After setting this basic groundwork, Story went on a brief review of the history of religion in the colonies and young states as it directly affects the Constitution and the American system -- turning to history as the authors of the Federalist Papers did in their own exposition on the Constitution.

In so doing, he observes that every state had a state sponsored religion.

“In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty.”

This all led Story to the conclusion that Christianity was never imagined to be detrimental to the health of the state or Federal government.

“Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”

Story was not insensible to religious oppression, of course, and his next several sections dealt with the religious oppressions of western history up to the time of the Founding of the country. Again, history was his guide.

With his historical investigations revealing the all too common religious oppressions by past governments concluded, Story assured his readers that the issue of religion belonged properly with the states where the people had the most ability to affect it -- As did the Founders before him.

“Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions…”

Conclusion

In the final analysis, Story observed no stark separation of church and state, but a practice of delegating a regulation of religion that rested with the various states. There was no expectation by the Founders or any language placed in the Constitution whereby religion would be banished from the public sphere. So this mythical “Wall of separation” does not really exist but in the minds of later day anti-religionists.

The reality of the Founder’s intent for the roles of government and religion were far more nuanced and complicated than modern religion banners pretend. Unfortunately, they are presenting an incorrect picture of history and Constitutional law that is damaging the system that the Founders created and materially altering our culture for the worse.

In closing, I’d like to quote one more Founder, Elias Boudinot, delegate from New Jersey to the Continental Congress from 1777 to 1778, and 1781 to 1784. Then President of the Continental Congress, 1783.

“Our country should be preserved from the dreadful evil of becoming enemies to the religion of the Gospel, which I have no doubt, but would be the introduction of the dissolution of government and the bonds of civil society.”

Religion was not something the Founders necessarily feared and wanted distanced from society and government, but one that must be closely held and carefully regulated for the health of both society and government.

Unfortunately, anti-religionists today forget that our nation was based on and intimately connected with, religious freedom. Not freedom from religion.