“What the Wall Separates”
A Jurisdictional Interpretation of the “Wall
[A]greement, in the abstract, that the First Amendment was de-
signed 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,
McCollum v. Board of Education (1948)1
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
—Robert Frost, “Mending Wall” (1914)2
Certainly, no power to prescribe any religious exercise, or to as-
sume authority in religious discipline, has been delegated to the
General Government. It must then rest with the States, as far as it
can be in any human authority.
—Thomas Jefferson to Samuel Miller (1808)3
What does the “wall” separate? On the surface, at least, the answer seems straightforward: the “wall” separates “church” and “state.” The answer, however, is more ambiguous than it may appear at first blush. What is meant by “church”? What is meant by “state”? Does the “wall” require that all matters respecting a “church” or, more broadly, “religion” be separated from the civil state? Does “state” include civil government in all its forms, at the local, state, and national levels? Did Jefferson's “wall,” insofar as it metaphorically represented