Actually, Jefferson was Right on Church & State
Thomas Jefferson’s Letter to the Danbury Baptist Association is the source code for what ails our polity, namely, radical church-state separation. It has been weaponized to sanitize public life of religion, to erase memory of the historically predominate religion, and to institute mandated secularization—public atheism. Jefferson’s “wall of separation” lay dormant until Reynolds v. United States (1879). Until then, the private letter likely intended to garner campaign support, was of little note. As has often been the case in First Amendment jurisprudence, the invocation of Jefferson’s maxim was irrelevant to the resolution of the case and controversy before the court. In Reynolds, the polygamist Mormon appellants lost. The government does, in fact, have an interest in what happens in the bedroom. It was the dicta of Justice Waite that introduced Jeffersonian separationism into the American bloodstream.
It has often been remarked that Jefferson was nowhere near the Constitutional Convention. His commentary on the First Amendment or otherwise, therefore, is of little weight. A valid point insofar as it goes. As it turns out, however, Jefferson’s textual analysis was quite good if, perhaps, uniquely rigid. It is not his fault that dolts and opportunists abused it later. Even as Jefferson’s religious preferences were aberrant for his generation—he did, indeed, hope that America would take a more “enlightened” turn—his interpretation of the purpose and effect of the First Amendment was correct. Meaning, he recognized that the whole point was to preclude the national (or “general”) government from either setting up a national establishment or subverting state-level (domestic) establishments. More simply, religious policy was left to the states, and the federal government had no ability to dictate to them in any regard.
Observe what Jefferson actually said to the Danbury Baptists. His rather innocuous belief was that government can “reach actions only, & not opinions.” For certain, Jefferson conceived of religion on what we might now call an “individualist” basis. With the Baptists, he espoused a religious liberty maximalist position and equivocated between this liberty and rights of conscience. Privately, he considered formal religion anachronistic if necessary purely as a means to push lower men to virtue, and further hoped that the indifference of the national government to religion would cause sectarian particulars to die out.
Note, however, that his wall of separation only refers to the national legislature. He quotes the First Amendment and invokes the “whole American people.” This, of course, is exactly what the First Amendment did. The extent to which the states mirrored that policy was up to them. The federal constitution (prior to 14th Amendment incorporation) could not force them. What Jefferson was telling the Baptists was that, nationally, they would be at no disadvantage. Their local status was a different story. The Danbury letter did not enact or predict the imposition of the nationally uniform secularism introduced in the 20th century, quite the opposite.
In his Second Inaugural Address confirms Jefferson’s reading of the First Amendment:
“In matters of Religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it: but have left them, as the constitution found them, under the direction & discipline of the state or church authorities acknowledged by the several religious societies.”
Significant here is that the object of “free exercise” is the states and churches—institutions—not individuals. Maybe “the free exercise thereof” refers to the free exercise of state religious policy not the free exercise of individual preference. Food for thought. How would a government precluded from determining religious policy preserve an individual free exercise anyway?
Jefferson’s “Fair Copy” commentary on the constitution again evinces his fidelity to the original meaning of the First Amendment and is worth quoting at length.
“Resolved that it is true as a general principle, and is also expressly declared by one of the Amendments to the Constitution that ‘the powers not delegated to the U.S. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the U.S. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech & of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment by the U.S. of the freedom of religious opinions and exercises, & retained to themselves the right of protecting the same, as this state, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference: And that in addition to this general principle and express declaration, another & more special provision has been made by one of the amendments to the constitution which expressly declares that ‘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,’ thereby guarding in the same sentence, & under the same words, the freedom of religion of speech & of the press: insomuch that whatever violates either throws down the sanctuary which covers the others, and that libels, falsehood & defamation, equally with heresy & false religion, are withheld from the cognizance of federal tribunal.”
In sum, the First Amendment, read in light of the Tenth. Since no power to define or determine the freedoms listed in the First Amendment was delegated to the general government, the First Amendment is almost superfluous. The “right of judging how far” each freedom—speech, press, and religion—would be extended or abridged was entirely the province of states. The federal government lacks “cognizance” to consider these matters; it cannot review state actions even were a state to punish heresy. Jefferson was motivated, in part, to push Madison to draft a bill of rights to make this restriction of cognizance clear. There was too much diversity in the colonies turned states to not secure this separation explicitly.
In an 1808 letter to Samuel Miller, Jefferson reiterated his constitutional interpretation.
“I consider the government of the U.S. as interdicted by the constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. it must then rest with the states.”
It was for this reason that Jefferson would not even recommend a day of fasting and prayer, for this would, under his rather strict hermeneutic, “indirectly assume to the U.S. an authority over religious exercises which the constitution has directly precluded them from.” He had registered the same objection in 1805. What was a recommendation anyway, asked Jefferson rhetorically, if it was not backed by sanction?
To be clear, Jefferson did not like state governors meddling, as he would have it, in religious affairs either. “I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline or its doctrines: nor of the religious societies that the General government should be invested with the power of effecting any uniformity of time or matter among them.” Jefferson disagreed with John Witherspoon that religion would decline if not supported by magistrates, albeit he may have hoped that would be the effect. He simply dismissed the causality (at least publicly). In Jefferson are contemporary Evangelical objections to establishment can be found. Christ did not advance his religion through temporal power, and etc.
And yet, when he was governor of Virginia, he had no problem approving fast days or days of thanksgiving. Similarly, his own advocacy, along with Madison, for a disestablished Virginia was proper—it was the right venue. Much of that effort may have been motivated by fear of episcopacy which was still heavily identified with Toryism or loyalty to the English crown. The progress of “religious liberty” in Virginia was as much political as spiritual. In whatever station he found himself, maybe Jefferson was honest in his attempt to merely harmonize and represent American sentiments even when he did not exactly share them. His willingness to embrace and express popular opinion was regular.
The point is his constitutional interpretation. State magistrates maintained a religious prerogative. What the First Amendment established was the preclusion of meddling by the general, federal, or national government in state religious affairs. We, myself included, have been too hard on the master of Monticello. It wasn’t all his fault. If courts of the 20th century had understood the constitution the way Jefferson did and exercised his restraint, we wouldn’t be in the mess we are today. It was not Jefferson’s wall of separation that subverted the original meaning and purpose of the First Amendment. The blame lies with later courts that adulterated and weaponized Jefferson’s words to subvert the constitutional order.
Image: Presidential portrait of Thomas Jefferson by Rembrandt Peale, 1800. Wikimedia Commons.
