Academic journal article
By Dreisbach, Daniel L.; Whaley, John D.
Constitutional Commentary , Vol. 16, No. 3
[A]greement, in the abstract, that the First Amendment was designed to erect a "wall of separation between church and State," does not preclude a clash of views as to what the wall separates.
Justice Felix Frankfurter(*)
No word or phrase is associated more closely by Americans with the topic of church-state relations than the "wall of separation between church and state." Although it is unclear why this metaphor has become so ingrained in the public mind, there is no doubt that Americans associate the image with one person: Thomas Jefferson. In an 1802 letter to the Danbury Baptist Association of Connecticut, President Jefferson used the celebrated "wall of separation" metaphor to define the First Amendment religious clauses. Jefferson wrote:
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 "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.(1)
In the twentieth century, Jefferson's "wall" has profoundly influenced discourse and policy on church-state relations. It is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement. More important, the judiciary has embraced the metaphor, adopting it not only as an organizing theme of church-state analysis, but also as a virtual rule of constitutional law. The use of Jefferson's metaphor to define the First Amendment has not been without controversy.(2) The fact remains, however, that both the courts and the public at large have embraced the "wall" metaphor as the primary emblem of American church-state relations. Given the metaphor's influence, it is important to understand what Jefferson meant by it. To that end, this article presents two contrasting interpretations of Jefferson's "wall." John D. Whaley offers a broad separationist interpretation, in accord with recent judicial applications of the metaphor.(3) Daniel L. Dreisbach, to the contrary, argues that the principal function of the "wall" erected in the Danbury letter was to separate state and nation in matters pertaining to religion rather than to separate ecclesiastical authorities from all civil government.
Before presenting these arguments, we describe the circumstances that prompted Jefferson's correspondence with the Baptists, as well as the general historical context in which the Danbury letter was written. We then proceed to the argumentative sections. Whaley offers a separationist interpretation of Jefferson's "wall," followed by Dreisbach's argument for a jurisdictional interpretation. We conclude by offering some final observations on the use of metaphors in American law. In particular, we consider the promises and limitations of Jefferson's "wall" for informing discourse and shaping policy on church and state in the United States.
I. JEFFERSON, THE DANBURY BAPTISTS, AND AMERICA IN TRANSITION
Jefferson was inaugurated the third president of the United States on March 4, 1801, following one of the most bitterly contested presidential elections in American history. Religion, in particular, emerged as a critical issue in the campaign. This was due in part to Jefferson's unorthodox religious views, but more generally to the fact that American religious culture was changing dramatically. The Second Great Awakening, in its early stages at the turn of the century, unleashed a proliferation of diverse denominations and dissenting sects that chafed under the old establishment order. This revival was only one part of the dynamic aftermath of the American Revolution, a period that would see the United States quickly become the most commercial, egalitarian, and evangelical nation in the world. …