Book Review: Thomas Jefferson and the Wall of Separation by Daniel Dreisbach
A historical, legal, and rational case against an unhelpful metaphor.
Thomas Jefferson and the Wall of Separation Between Church and State. By Daniel L. Dreisbach. New York, NY: New York University Press, 2002. 0-8147-1935.
Introduction
Daniel Dreisbach is a professor in the School of Public Affairs at American University in Washington, D.C. He earned a Doctor of Philosophy degree from Oxford University and a Juris Doctor degree from the University of Virginia. He served as judicial clerk for the U.S. Fourth Circuit Court of Appeals during the late 1980s, under Circuit Judge Robert F. Chapman in Columbia, SC. Dreisbach is well-studied and a veteran practitioner of American constitutional law and history, with special emphasis on First Amendment law and church-state relations.
This is his third published book (counting those he authored alone), and it highlights Dreisbach’s expertise. With this publication, Dreisbach made a case that the constitutionalized interpretation of the First Amendment – creating a wall of separation between church and state – was novel and contradictory to the original intent. Dreisbach’s argument is complementary to Philip Hamburger’s, which Hamburger published the same year.[1] Steven Smith argued similarly, and he went further than Dreisbach and Hamburger (12 years later), claiming that religious liberty is actually threatened today by the invention and adoption of the new interpretation of the First Amendment.[2]
A Metaphor that Became Constitutional Law
Daniel Dreisbach summarized his thesis in his introduction. He wrote,
“The ‘wall of separation’ metaphorically represents [a] constitutional provision. The [First] Amendment, however, differs in significant respects from [Thomas] Jefferson’s felicitous phrase. The former prohibits the creation of laws ‘respecting the establishment of religion’ (excepting, perhaps, laws to protect religious exercise), thereby limiting civil government; the latter, more broadly, separates ‘church’ and ‘state,’ thereby restricting the actions of, and interactions between, both the church and the civil state.”[3]
Dreisbach was especially interested in describing the historical development of the “wall of separation” metaphor and demonstrating that the metaphor itself has overtaken and distorted the original Constitutional language and intent. He went on to say, “The separation principle, interpreted strictly, proscribes [e.g., forbids] all add mixtures of religion and politics, denies all governmental endorsement of and aid for institutional religion, and promotes a religion that is strictly voluntary and essentially private, personal, and nonpolitical.”[4] The difference between the two is stark, and American cultural, political, and legal practice is greatly affected by choosing one over the other.
Like Philip Hamburger, Dreisbach lays primary blame on Supreme Court Justice Hugo Black for “elevating” the Jeffersonian metaphor to the level of an “authoritative gloss on the First Amendment.”[5] It was Justice Black who wrote the majority opinion in Everson v. Board of Education in 1947. Black wrote in part, “the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’… That wall must be kept high and impregnable. We could not approve the slightest breach.”[6] Dreisbach claimed, “Justice Black’s gloss on the metaphor (and the Amendment) has come to dominate modern political and legal discourse.”[7] Indeed, he said more overtly, “the Jeffersonian metaphor has eclipsed and supplanted constitutional text in the minds of many jurists, scholars, and the American public.”[8]
While supporters of the present application of the Jeffersonian metaphor insist that the state need not be indifferent or even hostile to religion, Dreisbach argues that it does in fact “separate religion and all civil government.”[9] Not only does the metaphor inevitably enforce a set of secular (i.e., anti-religious) presuppositions, it is also unwarranted in American jurisprudence. The case against the metaphor, according to Dreisbach, is (1) “the ‘wall of separation’ lacks historical legitimacy,” (2) “the ‘wall’ provides little practical guidance for the application of First Amendment principles to real world church-state controversies,” and (3) “the ‘wall’ is politically divisive.”[10] However, Dreisbach laments (in his concluding remarks), “once [the metaphor was] established in church-state jurisprudence and discourse, the ‘wall of separation’ ceased to provoke critical analysis and reevaluation.”[11]
An Anti-Religion Religion
As Steven Smith has noted, religious liberty or freedom is threatened in America today. But the threat is not coming from religious zealots who aim to establish a new theocracy (whatever critics of Stephen Wolfe’s The Case for Christian Nationalism might say). Instead, the real threat and true antagonist to religious liberty in America today is the political and legal establishment of secularism. Those who assume a high and impregnable wall of separation between Church and State reject Christian rationale as a valid participant in civil discourse. Religious beliefs in a transcendent God, the inherent dignity and value of human life, and an absolute ethical standard of morality are rejected outright where matters of the state are concerned. In short, secularism has become an anti-religion religion. With its own ethical code, its own presuppositions (i.e., dogma), and its own judgments between orthodoxy and heresy, secularism demands that all other religions submit to its ultimate authority.
Conclusion
Daniel Dreisbach offers the reader a historical, legal, and rational argument for rejecting Thomas Jefferson’s metaphor as a useful or authoritative interpretation of the First Amendment. Instead, Dreisbach invites the reader to reconsider the meaning of the Constitutional Amendment and to recover an interpretation that will encourage interaction between religion and the civil government. This was central to the genius of American civilization, and it will prove essential to the preservation of America as it’s been known for the last two-hundred and fifty years.
[1] Hamburger, Philip. Separation of Church and State. First Harvard University Press paperback. Cambridge, MA: Harvard University Press, 2004.
[2] Smith, Steven D. The Rise and Decline of American Religious Freedom. Cambridge, MA: Harvard Univ. Press, 2014.
[3] Dreisbach, Daniel L. Thomas Jefferson and The Wall of Separation Between Church and State. New York: New York University Press, 2003. p. 2.
[4] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 2.
[5] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 4.
[6] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 4.
[7] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 4.
[8] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 5.
[9] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 125.
[10] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 124.
[11] Dreisbach. Thomas Jefferson and The Wall of Separation. p. 128.