"Have To" History: A Wall of Separation

H2H: Supreme CourtNOTE: I've finally completed "Have To" History: Landmark Supreme Court Cases (or at least the initial draft). At the moment, it's available on Teachers Pay Teachers and intended to be an easily affordable resource for pretty much any American History or Government teacher of whatever level – from 8th Grade Civics to APUSH. I'm not looking to make serious money or anything, but it took a long time to write and edit, so until I have time to pursue other avenues, there it is.

In the meantime, it's on to the resource book I've wanted to put together for a much longer time – Supreme Court cases related to religion in the public square, particularly in relation to public schools. I find the topic fascinating and the cases and their written opinions far more engaging than pretty much anything else in the annals of jurisprudence. I realize this makes me both weird and slightly pathetic, but so be it. This post is the first chapter of this new undertaking. If you'd like to read more, go buy the first one so I can afford to order pizza and keep working on it.

“Have To” History: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The "Wall of Separation"

Three Big Things:

Madison Talking Bill of Rights1. The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general.  

2. The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be.

3. The 14th Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the 14th Amendment is known in legal circles as “incorporation.”

Background: A Bill of Rights

The U.S. Constitution was written as a replacement for the Articles of Confederation – the new nation’s first effort at writing a broad set of laws by which to govern itself. The Articles had guaranteed the States almost complete sovereignty and absolute independence from one another – a great idea in theory, but not as workable in practice.

It was understandable that the Framers would err on the side of freedom, having finally won an extended and bitter war with the Motherland over a King they’d claimed was a “tyrant.” There were over two dozen specific examples of his excessive rule-making and liberty-crushing behavior included in the break-up letter penned by the Colonies – a missive better known as the “Declaration of Independence.”

But they had, perhaps, swung a bit too far away from structure and security. The Constitution was an effort to rectify the resulting difficulties. Turns out that sometimes, thoughtful limits actually grease the gears of liberty.

When the U.S. Constitution was finally ready for public review and debate in the late 1780’s, there were many who thought we’d once again overcompensated – this time back towards too much central authority and too little freedom. They wanted some sort of written guarantee they wouldn’t be oppressed by this bigger, stronger government.

The authors were appalled at this concern. Obviously, any powers not specifically granted to the national government by this document remained with the States and the People thereof! To spell out those protections would be… redundant! Possibly even limiting! What if listing some specifically guaranteed rights implied that they were the only ones thus secured?!

It almost got ugly.

Nevertheless, a compromise was reached. The Constitution was ratified, and a collection of ten clarifying Amendments almost immediately passed as a package deal. Thus, the “Bill of Rights.” Despite the numbering system, there are far more than ten rights included. Some Amendments, like the Fourth, Fifth, and Sixth, are packed with due process and thick verbiage. Others, like the Eighth, are fairly crisp – although written in such a way as to allow at least 225 years of subsequent debate as to exactly what they mean.

The Third is all but irrelevant. The Seventh, strangely technical. The Second – well, the Second was badly written from the moment it was passed. Whatever it did or didn’t intend to say about the right to “bear arms,” James Madison’s English teacher must have had a fit.

But the best-known is probably the First.

The First Amendment   

The First Amendment contains six specific protections, somewhat related, and presumably so very important that they all tied for first when the Framers were debating what to guarantee the mostiest mostest:

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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These are the biggies that squeezed in ahead of militias and quartering of soldiers, and even beat out due process in order of presentation. The right to protest. The right to associate with whomever you wish, including but certainly not limited to political organizations of any and all stripes. Freedom of the press and of speech – absolute linchpins to any nation hoping to maintain the slightest credibility as a true democracy.

But coming ahead of all of them – earning the first two slots in all of Amendment-dom – are the twin ‘freedom of religion’ clauses.

Congress shall make no law respecting an establishment of religion…

In the most basic terms, this says the government may not do anything to promote or encourage a particular religion or the concept of religion in general. Doing so creates a double curse. It leads to the marginalization and eventual persecution of those with different beliefs (whether that difference is major or minor), AND it soils the very faith the government is promoting by making it a tool of secular authority, regulated by political maneuvering and flawed men rather than one’s own spiritual journey.

A faith mandated by the guys with guns and the keys to the jail is, of course, no faith at all.

Or prohibiting the free exercise thereof…

This is the part which says that the government may not do anything to discourage, limit, or punish a particular religion or the concept of religion in general. Hopefully the problems with that sort of behavior are self-evident.

The President and Some Baptists

TJ WorkingAs to the phrase “wall of separation between church and state,” we have Jefferson to either thank (or blame, depending on your point of view). Well, him and the Baptists.

In 1801, while Jefferson was President, he received a letter from the Danbury Baptists Association in Danbury, Connecticut. They had some concerns about religious freedom and what they saw as inadequate delineation between the secular and the spiritual:

Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, {and} that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor.

These Danbury Baptists were asserting that faith is between the individual and his God, while the government is simply supposed to keep us from killing one another or taking each other’s stuff. That’s it – no getting involved in issues best left to the pulpit or the prayer closet. They were frustrated at what they perceived as local governmental practices, indirectly promoting on sect over another, and a growing tendency for those seeking power to fling accusations of godlessness at opponents who refused to use their secular authority to do the same.

Way back in the day, that is.

That is, however, the logical and historical result when you have a religious population and a government of-the-by-the-for-the people. It’s natural to want government to step in and take “your side.” It’s the flip-side of religious freedom – where two or more or gathered, they’ll immediately begin arguing about the finer points of hermeneutics. Unless a government makes substantial and ongoing efforts to avoid such entanglements, those arguments naturally spill over into the secular realm.

It was Jefferson’s reply which gave expression to what has become the most common understanding of the First Amendment’s guarantees regarding matters of faith:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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 & State.

There it is.

By itself, it’s just a phrase in a letter. But it’s a phrase in a letter which has been repeatedly referenced and validated in Supreme Court decisions and has become an entrenched and widely accepted interpretation of First Amendment protections through case law and sheer longevity. In other words, it’s as close to belonging in the actual text of the Constitution as something can be without actually being in the text. Then again, it didn’t really matter very much for the next hundred years.

The 14th Amendment and “Incorporation”

Lady Justice w/ LightingPrior to the 14th Amendment, the protections offered by the Bill of Rights applied exclusively to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted. The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead. Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of. It made it as far as the bus. The case was , and it began a long and winding path of jurisprudence shaping the relationship between religion and public schools.

Spoiler alert: not everyone would be happy with the results. 

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