It was composed nearly two centuries ago, but a letter penned by Thomas Jefferson continues to fuel controversy over the Founder's view of the "wall of separation" between church and state. And the latest twist involves a joint declaration to the Library of Congress signed by two dozen of the country's leading First Amendment scholars, taking issue with claims made in late July of this year, suggesting that Jefferson's motives in penning the famous communique were "political" rather than a reflection of his honest views concerning state-church separation.
In 1802, while serving as President, Jefferson wrote a letter to the Danbury Baptist Association wherein he employed a phrase referring to a "wall of separation." Jefferson had already developed a reputation as a staunch separationist; indeed, he was referred to as a "miserable atheist" by his Federalist political opponents and others who suggested that he was too much of a rebel. He was the architect of the Act for Establishing Religious Freedom in Virginia which ended compulsory funding of so-called "established" religions. That 1786 Act states that "no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions of belief."
In penning the letter to the Danbury Baptists, Jefferson's remained consistent in his commitment to the separation of state and church. He wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law regarding an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."
Echoing the resentment of earlier churches to the whole notion of disestablishment, modern day religious groups have attacked Jefferson's "wall of separation" reference. Christian Reconstructionists and others intent on legislating "Bible law" as the civil law of the United States grudgingly acknowledge the reference, simply insisting that it should be discarded. More politically adroit strategists, like David Barton of the Wall Builders group, have attempted to put "spin" on the Danbury Letter, advancing disingenuous claims that the "wall of separation" was meant to be "one directional," and not prohibit the influence of civil matters by organized religion.
All of this squabble remained confined to history, or debates involving the claims of fundamentalists like Barton who sought a way of challenging 35 years of Supreme Court decisions protecting state-church separation in cases like MURRAY v. CURLETT, ENGEL v. VITALE and others. In July, however, two developments -- one on the political scene, the other taking place within the Library of Congress and the FBI's Forensic Laboratory -- intersected, igniting the present controversy...
The results of the FBI examination were interesting. A inked-over portion revealed that Jefferson had made reference to an " wall of eternal separation" between government and religion. The Library of Congress report on this development, though, written by Hutson claimed that Jefferson invented the "wall" analogy as a means of fending off political attacks by his opponents. The news was gleefully reported in the Washington Times, which quoted Hutson as claiming that two days after penning the Danbury Baptist letter, Jefferson supposedly began attending weekly worship inside the House of Representatives. "That phrase about the wall doesn't mean much in light of his behavior, does it,?" Hutson remarked.
Coincident with the revelations about the Danbury letter, Library of Congress also opened an exhibit entitled "Religion and the Founding of the American Republican."
The revelations about the Danbury letter, and the questionable spin reportedly made by Hutson, quickly attracted the interest of religious right groups which were in the midst of a last-minute pitch to build support for the Religious Freedom Amendment. Within 72 hours of the RFA vote, Pat Robertson's Christian Coalition swung into action; executive director Randy Tate issued a media statement claiming that the Library of Congress had "skewered (sic) the wall of separation" reference made by Jefferson. Tate also urged people to visit the Library's new exhibit on the role played by religion in American history. In an interview with AANEWS, Hutson expressed dismay that the Coalition was trying to capitalize on the Jefferson letter finds for political gain, and denied any agenda to use the Library of Congress in supporting the Religious Freedom Amendment. He also noted that it was odd that Mr. Tate could be endorsing and describing the exhibit, since it opened AFTER the Coalition press release was sent out. But the RFA fared well in the House, gaining a majority of votes -- thought still short of the necessary 2/3 margin for passage as a constitutional amendment.
Constitutional scholars and First Amendment historians have now taken issue with Dr. Hutson, and the claim that Jefferson's motivation in writing his letter to the Danbury Baptists was essentially a political stunt, and not an accurate representation on his passionate views concerning state-church separation. The letter was drafted by Prof. Robert M. O'Neil, professor of law at the University of Virginia, and Dr. Robert S. Alley, professor of humanities, emeritus, University of Richmond. It reads:
The Library of Congress Misinterprets Thomas Jefferson:
A Letter of Concern from Scholars Listed Below
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On June 4, 1998, the Manuscript Division of the Library of Congress mounted
an exhibit entitled "Religion and the Founding of the American Republic." It
is an impressive collection beginning with the English colonization of the
17th century and reaching into the New Republic. It was developed under the
direction of Dr. James Hutson, Chief of the Manuscript Division of the Library
of Congress. Unfortunately, the press, with apparent encouragement from Dr.
Hutson, chose to focus on a single document, a letter from President Thomas
Jefferson on January 1, 1802 to a Committee of the Danbury (Connecticut)
Baptist Association. Concurrent with the press conference, Dr. Hutson
released an essay, written on official stationery of the Library of Congress,
entitled, "The Wall of Separation Between Church and State: What Jefferson
Originally Wrote and What It Means."
Dr. Hutson's essay yields an unbalanced treatment of this important topic on the basis of questionable analysis that has not, as far as is known, been subjected to independent scholarly review. The essay depends upon a flawed premise that since President Jefferson edited the original draft of the letter, it is possible, simply by comparing that original with the final version, for the reader fully to "discern Jefferson's true intentions in writing the celebrated Danbury Baptist letter." From there, the essay devolves into an assault on the phrase "separation of church and state," supported with tenuous inferences from Jefferson's excisions. Dr.; Hutson also implies that intent and meaning can be derived from examining the document in isolation from related materials, including Jefferson's extensive, life-long examination of the subject at hand. There is not even a reference to the text of the letter from the Danbury Baptists to Jefferson. The Library of Congress has chosen to interpret the meaning of "separation" from Jefferson's omissions from a single letter. There may be several possible explanations for Jefferson's excision of certain material, but the most obvious to any experienced writer is that he was editing while composing. Although scholars may differ as to the reasons for Jefferson's editorial selections, there is no basis for arguing that these omissions indicate that the reply was not "conceived to be a statement of fundamental principles," but rather "was meant to be a political manifesto, nothing more." It is also inaccurate to claim that the reply to the Baptists was "political" and not "a dispassionate theoretical pronouncement." Supporters of a broad understanding of Jefferson's Danbury letter have never denied the relevant and pertinent political considerations; however, that fact does not negate either the significance of this statement or his commitment to the principle. Jefferson's two most prized examples of his authorship -- the Declaration of Independence and the Statute for Establishing Religious Freedom in Virginia -- could not have been more political, even as every line was laced with principles concerning democracy and freedom. Respecting the timing of the deletions, Dr. Hutson ignores the fact that we simply do not know when Jefferson struck the word "eternal" modifying "separation." Dr. Hutson compounds the problem by assuming that he does know! Scholars certainly can argue persuasively that the four deletions indicated by Jefferson in the circled sentence which he did omit occurred before the letter was sent to Attorney General Levi Lincoln for his comments. Of course the debate about the Danbury letter is of current significance because of the connection the Supreme Court has made between it and the First Amendment. Unfortunately, in addressing that issue, Dr. Hutson ignores the past sixty years of Supreme Court opinions that analyzed Jefferson's phrase. He chooses to cite only one case, McCollum v. Board of Education (1948), and argues, with no citation of evidence, that the court used "Jefferson's 'wall' metaphor as a sword to sever religion from public life, a result that was and still is intolerable to many Americans." Absolutely nothing in the McCollum decision hints at severing religion from public life. it was focused on "public school buildings used for the dissemination of religious doctrines" during the school day. Indeed, Justice Hugo Black, writing for the majority, observed that the decision "does not, as counsel urge, manifest a governmental hostility to religion or religious teachings." Finally, Dr. Hutson makes no mention of the Zorach v. Clauson decision in which the Court, four years later, allowed released time for religious instruction. Another problem with Dr. Hutson's reasoning is his failure even to mention the letter from the Danbury Baptist Committee. What was Jefferson answering? Analysis of that letter is absolutely essential to any understanding of the Jefferson response. The three authors of the letter "rejoice" in Jefferson's election. Their "Sentiments are uniformly on the side of Religious Liberty." They speak of "civil government" extending "no further than to punish a man who works ill to his neighbors." So why would Dr. Hutson suggest that Jefferson's phrase "merely temporal" to describe his duties as "a clenched- teeth, defiant ring?" Indeed, the letter from the Danbury Baptist Association Committee endorses a distinction between "civil government" and the existing governmental practices in Connecticut. The Baptists criticized the political leaders in Connecticut who had reproached the President by calling him "an enemy of religion, Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ." It is difficult to understand why Dr. Hutson thinks the Baptists would have been offended by the term "temporal." The religious establishment of Connecticut might have objected, but they were never Jefferson supporters anyway. On the other hand, Baptists were quite familiar with the distinction that Roger Williams made between the temporal and the eternal. "All civil state," Williams wrote, "are proved essentially civil, and therefore not judges, governours or defendours of the spiritual or Christian state and worship." The Jefferson phrase "thus building a wall of separation between church and state" is familiar to millions of Americans and is regularly thought of as a convenient way to describe the scope and effect of the religion clauses of the First Amendment. We believe Jefferson's metaphor to be a significant part of understanding the matrix out of which that Amendment emerged. The historical record makes clear that he used his commitment to religious freedom with utmost deliberation in order to set forth both his philosophy and his view of public policy. We have no hesitation in asserting that it was an extraordinary affirmation befitting the best split in our republican democracy. Pulitzer Prize-winning historian Leonard Levy, one of Jefferson's harshest critics, phrased it best. "Jefferson had powerful convictions on the subject of religious liberty which he always approached most solemnly." We strongly disagree with the conclusions reached by the Library of Congress and urge Library staff to refrain from presenting those conclusions as settled fact. Signed: Robert S. Alley Professor of Humanities, Emeritus, University of Richmond Derek H. Davis, J.D., Ph.D. Director of the J.M. Dawson Institute of Church-State Studies, Baylor University, and Editor of Journal of Church and State G. Scott Davis Lewis T. Booker Professor of Ethics and Religion, University of Richmond Norman Dorsen Stokes Professor of Law, New York University School of Law Robert F. Drinan, S.J. Georgetown University Law Center Ronald B. Flowers Chairman of Religion Department, Texas Christian University Edwin S. Gaustad Professor of History, Emeritus, University of California at Riverside Philip E. Hammond D. Mackenzie Brown Professor, Department of Religious Studies, University of California at Santa Barbara Peter Irons Professor of Political Science, University of California at San Diego Gregg Ivers Professor of Government, American University Isaac Kramnick Professor of Government, Cornell University Bill J. Leonard Dean, Divinity School, Wake Forest University Henry S. Levinson Professor of Religious Studies, University of North Carolina at Greensboro Robert S. Michaelsen J.F. Rowney Professor of Religion and Society, Emeritus, University of California at Santa Barbara James Robert Miller Chair, Department of Philosophy and Religion, Eastern Kentucky University R. Laurence Moore Howard A. Newman Professor of American Studies, Cornell University Robert M. O'Neil Professor of Law, University of Virginia Richard V. Pierard Professor of History, Indiana State University Robert A. Rutland Professor of American History, Emeritus, University of Virginia; Senior Editor of the Papers of James Madison, 1973-1985 Robert E. Shepherd Professor of Law, University of Richmond Law School George Shriver Professor of History, Georgia State University Paul D. Simmons Clinical Professor, University of Louisville Ruti Teitel Professor of Law, New York Law School William Van Alstyne William R. and Thomas C. Perkins Professor of Law, Duke University School of Law |
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