The True Meaning of the
Establishment Clause: A Dissent
William H. Rehnquist
Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16 ( 1947) summarized its exegesis of Establishment Clause doctrine thus:
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States, [ 98 U.S. 145, 164, ( 1879)]."
This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "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." 8 Writings of Thomas Jefferson 113. ( H. Washington ed. 1861) 1
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly forty years. Thomas Jefferson was of course in France at the time the constitutional amendments known as the Bill of Rights were passed by Congress and ratified by
On June 4, 1985, the Supreme Court of the United States ruled, 6-3, that an Alabama statute authorizing a one-minute period of silence in all public schools "for meditation or voluntary prayer" was unconstitutional. The Court held that the statute was a law respecting an establishment of religion and thus violated the First Amendment. Wallace v. Jaffree, 472 U.S. 38 ( 1985). This chapter is taken from the dissenting opinion in the case by William H. Rehnquist, then associate justice and now chief justice — Eds.