The Myth of the 'Wall of Separation'

By Dr. James Hitchcock
Herald Columnist
(From the issue of 1/13/05)

"When the Founding Fathers of the United States drafted the Constitution, they built a ‘wall of separation of church and state’ to keep religion from intruding into the public sphere. This has been the American tradition ever since. Unfortunately the ‘Religious Right’ now seeks to breach that wall and thereby undermine the Constitution."

The above view of our history is now common in public discourse, particularly beloved of some editorial writers, who lecture a backward citizenry about the true "American way." However, no matter how often the above mantra is repeated, virtually every part of it is untrue.

When the framers of the Constitution adopted the clause "Congress shall make no law respecting an establishment of religion," they did not explain what they meant by it. There was almost no discussion of it at the time, in all likelihood because no one saw a need to clarify its meaning, because it was merely intended to prevent the Federal government from interfering with the various states in matters of religion, at a time when some states still maintained official churches.
Modern separationists invoke the names of James Madison and Thomas Jefferson to "prove" what the Founding Fathers intended. But Jefferson had nothing to do with the drafting of the Bill of Rights. Madison did, but the religion clauses were the work of someone else. The hallowed phrase "wall of separation" does not appear in the Constitution, as some people seem to think, but in a private letter that Jefferson wrote some years later. For almost a century afterwards the "wall" metaphor was largely ignored.

Those who believe the myth of strict separationism find it impossible to explain why we have military chaplains, prayers in courts and legislatures, the claim "In God We Trust" on coins, an official Thanksgiving day, oaths that end "so help me, God," and many other things that bring religion into the public sphere. The answer is simple. Even Madison and Jefferson were not as extreme as the modern separationists and, for more than 150 years after the Bill of Rights was drafted, few people agreed with Madison’s and Jefferson’s separationist philosophy. Even those two statesmen, while they were in office, accommodated religion in various ways, and it is quite clear that few of their contemporaries understood the First Amendment in the ways Madison and Jefferson wanted it understood.

Thus, not surprisingly, until 1948 the Supreme Court never found a violation of separation of church and state, and on numerous occasions it upheld arrangements whereby religion received official public support. As late as 1930 the Court dismissed out of hand a claim that it was unconstitutional for a state to provide textbooks to students in Catholic schools, just as it had previously ruled that no institution was sectarian if it provided beneficial services to society, like schools or hospitals.

The Court in 1947-48 made a revolution simply by bold assertion, without regard for historical or judicial evidence, like a magician turning a bouquet of flowers into a pigeon in full view of an audience. Some of the leading constitutional scholars pointed this out at the time, but the new understanding of the First Amendment quickly became enshrined as definitive, and ever since separationists have reacted with shock and horror when anyone recalls how arbitrary these decisions really were.

How and why this happened in 1947-48 is a complicated story, but a key part of it is the fact that most of the Supreme Court justices who brought about this revolution, and many of the people who then enshrined it in our national lore, frankly regarded traditional religion as outmoded and in some ways dangerous. They did not really care what the Founding Fathers intended, or what the real tradition of the country was. They simply believed that the time had come to marginalize religion. Those who today seek to undo some of the damage stemming from that fallacy are not undermining the Constitution but seeking to recover it.

To learn more about this than most readers probably want to know, see my recent book, The Supreme Court and Religion in American Life (Princeton University Press — two volumes).

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