A publication of Liberty Counsel

Vol. 9, No. 4 "Where the Spirit of the Lord is, there is Liberty." (2 Corinthians 3:17) April 1998

Knocking Humpty Dumpty Off the Wall

By Mathew D. Staver, Esq.

Justice Oliver Wendell Holmes once said, "It is one of the misfortunes of the law that ideas become encysted in phrases, and thereafter for a long time cease to provoke further analysis." The phrase, "separation of church and state," has be come one of these misfortunes of law.

In 1947 the Supreme Court popularized Thomas Jefferson's "wall of separation be tween church and state." Taking the Jefferson metaphor out of context, strict separationists have often used the phrase to silence Christians and to limit any Christian influence from affecting the political system. To understand Jefferson's "wall of separation," we should return to the original context in which it was written.

Thomas Jefferson was inaugurated as the third President on March 4, 1801. On October 7, 1801, a committee of the Danbury Baptist Association wrote a con gratulatory letter to Jefferson on his election as President. Organized in 1790, the Danbury Baptist Association was an alli ance of churches in Western Connecticut. The Baptists were a religious minority in the state of Connecticut where Congregationalism was the established church.

The concern of the Danbury Baptist As sociation is understandable once we understand the background of church-state relations in Great Britain. The Association eschewed the kind of state sponsored enforcement of religion that had been the norm in Great Britain.

The Danbury Baptist Association com mittee wrote to the President, stating that "Religion is at all times and places a Matter between God and Individuals -- that no man ought to suffer in Name, person or affects on account of his religious Opinions." The Danbury Baptists believed that religion was an inalienable right and they hoped that Jefferson would raise the consciousness of the people to recognize religious freedom as inalienable. However, the Danbury Baptists acknowledged that the President of the United States was not a "national Legislator" and they also understood that the "national government cannot destroy the Laws of each State." In other words, they recognized Jefferson's limited influence as the federal executive on the individual states.

Jefferson did not necessarily like re ceiving mail as the President, but he generally endeavored to turn his responses into an opportunity to sow what he called useful truths'' and principles among the people so that the ideas might take politi-

cal root. He therefore took this opportu nity to explain why he as President, contrary to his predecessors, did not proclaim national days of fasting and prayer.

Jefferson's letter went through at least two drafts. Part of the first draft reads as follows;

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 legitimate 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 sepa ration between church and state. Congress thus inhibited from acts respecting religion, and the Executive authorized only to execute their acts, I have refrained from prescribing even occasional performances of devotion...

Jefferson asked Levi Lincoln, the Attorney General, and Gideon Granger, the Postmaster General, to comment on his draft. In a letter to Mr. Lincoln Jefferson stated he wanted to take the oc casion to explain why he did not "proclaim national fastings & thanksgivings, as my predecessors did." He knew that the response would "give great offense to the New England clergy" and he advised Lincoln that he should suggest necessary changes.

Mr. Lincoln responded that the five New England states have always been in the habit of "observing fasts and thanksgivings in performance of proclamations from the respective Executives" and that this "custom is venerable being handed down from our ancestors." Lincoln therefore struck through the last sentence of the above quoted letter about Jefferson refraining from prescribing even occasional performances of devotion. Jefferson stated in a note written in the margin that this paragraph was omitted because "it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings" by their state executives is respected.

To understand Jefferson's use of the wall metaphor in his letter to the Danbury Baptist Association, we must compare his other writings. On March 4, 1805, in Jefferson's Second Inaugural Address, he stated as follows:

In matters of religion, I have con sidered that its free exercise is placed by the constitution indepen dent of the powers of the General [i.e., federal] Government. I have therefore undertaken, on no occa sion, 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.

Then on January 23, 1808. Jefferson wrote in response to a letter received by Reverend Samuel Miller, who requested him to declare a national day of thanksgiving and prayer:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provisions that no law shall be made respecting the establishment or free exercise of religion [First Amend ment], but from that also which reserves to the States the powers not delegated to the United States [Tenth Amendment]. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General [i.e. federal] Government. It must then rest with the States, as far as it can be in any human authority.

I am aware that the practice of my predecessors may be quoted. But I have every belief, that the example of State executives led to the assumption of that authority by the General Government, without due examination, which would have dis covered that what might be a right in State government, was a violation of that right when assumed by another.... [C]ivil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents.

Comparing these two responses to his actions in the state government of Virginia show the true intent of Jefferson's wall metaphor. As a member of the House of Burgesses, on May 24, 1774, Jefferson participated in drafting and enacting a reso lution designating a "Day of Fasting, Humiliation, and Prayer." This resolution occurred only a few days before he wrote "A Bill for Establishing Religious Free dom." In 1779, while Jefferson was governor of Virginia, he issued a procla mation decreeing a day "of publick and solemn thanksgiving and prayer to Almighty God." In the late 1770's as chair of the Virginia committee of Revisers, Jefferson was the chief architect of a measure entitled "A Bill for Appointing Days of Public Fasting and Thanksgiving." Interestingly, this bill authorized the governor, or Chief Magistrate with the advice of Counsel, to designate days of thanksgiving and fasting and, required that the public be notified by proclamation. The bill also provided that every minister of the gospel on each day so appointed should attend and perform di vine services and preach a message consistent with the theme of the proclamation and that failure to do so would result in a penalty of fifty pounds. Though the bill was never enacted, Jefferson was its chief architect and the sponsor was none other than James Madison.

So what did Jefferson mean when he used the "wall" metaphor? Jefferson undoubtedly meant that the First Amendment prohibited the federal Congress from enacting any law respecting an establishment of religion or prohibiting the free exercise thereof. As the chief executive of the federal government, the President's duty was to carry out the directives of Congress. If Congress had no authority in matters of religion, then neither did the President. Religion was clearly within the jurisdiction of the church and states. As a state legislator, Jefferson saw no problem with proclaiming days of thanksgiving and prayer, and even on one occasion prescribed a penalty to the clergy for failure to abide by these state proclamations. Jefferson believed that the Constitution created a limited government and that the states retained the authority over matters of religion not only through the First Amendment but also through the Tenth Amendment. The federal government had absolutely no jurisdiction over religion, as that matter was left where the Constitution found it, namely within the individual churches and the several states.

In summary, the First Amendment says more about federalism than religious freedom. In other words, the purpose of the First Amendment was to declare that the federal government had absolutely no jurisdiction in matters of religion. It could neither establish a religion, nor prohibit the free exercise of religion. The First Amendment clearly erected a barrier between the federal government and religion on a state level. If a state chose to have no religion, or to have an established religion, the federal government had no jurisdiction one way or the other. This is what Thomas Jefferson meant by the "wall of separation." In context, the word "state" really referred to the federal government. The First Amendment did not apply to the states. It was only applicable as a restraint against the federal government. The problem arose in 1940 and then again in 1947 when the Supreme Court applied the First Amendment to the states. This turned the First Amendment on its head, and completely inverted its meaning. The First Amendment was never meant to be a restraint on state government. It was only applicable to the federal government. When the Supreme Court turned the First Amendment around 180 degrees and used Jefferson's comment in the process, it not only perverted the First Amendment, but misconstrued the intent of Jefferson's letter.

There is nothing wrong with the way Jefferson used the "wall of separation between church and state" metaphor. The problem has arisen when the Supreme Court in 1947 erroneously picked up the metaphor and attempted to construct a constitutional principal. While the metaphor understood in its proper context is useful, we might do well to heed the words of the United States Supreme Court Justice William Rehnquist:

The "wall of separation between church and State" 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.


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