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Published online by Cambridge University Press: 24 April 2015
1. For the “wall of separation” metaphor, see Letter of Thomas Jefferson to Messrs. Nehemiah Dodge, Ephraim Robbins, and Steven S. Nelson, a Committee of the Danbury Baptist Association in the State of Connecticut (01 1, 1802)Google Scholar, in 510 Thomas Jefferson: Writings (Lib. Am. 1984)Google Scholar:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and 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 and State.
2. See Lupu, Ira C., The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230 (1994)Google Scholar.
3. 330 U.S. 1 (1947). Blame for elaborating “a rule of law … from a figure of speech,” cannot be laid entirely at Justice Black's door. See McCollom v. Board of Education of School District No. 71, Champaign Co. Ill., 333 U.S. 203, 247 (1948) (Reed, J., dissenting). The Supreme Court, in an opinion by Justice Waite, had declared seventy years previously that Jefferson's letter to the Danbury Baptists should be received “almost as an authoritative declaration of the scope and effect” of the First Amendment's religion clauses. Reynolds v. United States, 98 U.S. 145, 164 (1878). I have previously complained that the Court erected the jurisprudence of the religion clauses on “a shockingly scanty historical base.” Hall, Timothy L., Separating Church and State: Roger Williams and Religious Liberty 4 (U. Ill. Press 1998)Google Scholar.
4. Id. at 18.
5. See Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion 109 (Anchor Books 1993)Google Scholar (“There is nothing wrong with the metaphor of a wall of separation. The trouble is that in order to make the Founders' vision compatible with the structure and needs of modern society, the wall has to have a few doors in it.”).
6. Compare this position with that taken by Justice William O. Douglas, who announced in Zorach v. Clauson that the “First Amendment does not say that in every and all respects there shall be a separation of Church and State.” 343 U.S. 306, 312 (1952). To be accurate, I should refer to the Justice Douglas of Zorach v. Clauson, as distinguished from the Justice Douglas who concurred with the Court's decision in Engel v. Vitale and repudiated a good many of the exceptions that he was willing to recognize for the principle of separation in Zorach. See Engel v. Vitale, 370 U.S. 421, 440 n. 5 (1962) (Douglas, J., concurring).
7. See Kurland, Philip B., The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L. Rev. 842 (1986)Google Scholar. See generally Howe, Mark DeWolfe, The Garden and the Wilderness: Religion and Government in American Constitutional History 4 (U. Chi. Press 1965)Google Scholar (“By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.”).
8. See Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002).
9. See White House Office of Faith-Based and Community Initiatives <http://www.whitehouse.gov/infocus/faith-based/> (accessed Dec. 18, 2002).
10. Curry, Thomas J., Farewell to Christendom: The Future of Church and Stale in America 8 (Oxford U. Press 2001)CrossRefGoogle Scholar.
11. Compare Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom vi (Oxford U. Press 1995)Google Scholar (suggesting that modern constitutional discourse concerning the religion clauses is “founded on empty premises and false assumptions”).
12. See e.g. Friedman, Lawrence M., American Law in the 20th Century 510 (Yale U. Press 2002)Google Scholar. The establishment clause “embodies,” Professor Friedman announces with all the confidence a scientist might have in an axiom of nature, “the famous ‘wall of separation’ between church and state.”
13. [T]he Baptists of the Danbury Association did not publish their letter from the president, and, far from employing Jefferson's words about separation, they continued to demand their freedom with the vocabulary and concepts they had used in the past. Apparently, separation was not what the Baptists wanted.
Id. at 163.
The author admits that a few Baptists, such as John Leland and Nehemiah Dodge, may have come close to sharing Jefferson's fondness for the idea of separation, but he demonstrates that these men were neither representative of Americans generally nor even of Baptists in particular. (165-180).
14. Hall, supra n. 3, at 131.
15. See Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2465 (2002) (reiterating that the establishment clause prohibits laws with either the purpose or effect of advancing or hindering religion).
16. Once Protestants began to emphasize appropriate church/state relations in terms of separation, Hamburger points out that they did not immediately locate the principle of separation in the U.S. Constitution. Instead, they turned their attention to proposals to amend the Constitution to add this principle to the existing language of the religion clauses. Thus, according to Hamburger, these efforts at constitutional amendment affirm what he argues at length: that the First Amendment was not originally understood to embrace a principle of church/state separation. (287-302).
17. See e.g. Wallace v. Jaffree, 472 U.S. 38, 101-106 (1985) (Rehnquist, J., dissenting).
18. Id. at 113.
19. See e.g. Lee v. Weisman, 505 U.S. 577, 626 (1992) (Souter, J., concurring) (practices such as those itemized in the text “prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next.”). I confess to having pursued this avenue myself, in complaining that the Court's reliance on practices of the Framers that contradicted what I took to be their “principles,” “is the triumph of history over principle.” Hall, Timothy L., Sacred Solemnity: Civic Prayer, Civil Communion, and the Establishment Clause, 79 Iowa L. Rev. 35, 47 (1993)Google Scholar. See Curry, supra n. 10, at 43 (explaining the inconsistency between the Framer's principle—which he asserts to be the denial of power of religion to government—and their practices as arising from the reality that “the preponderance of the population participated in a common culture and shared a common Protestantism” and were thus not “motivated to challenge cultural religious practices that in fact perpetuated elements of Christendom by involving states in the exercise of power in religious matters”).
20. Wechsler, Herbert, Towards Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 9 (1959)CrossRefGoogle Scholar; McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (emphasis in original).
21. This strategy normally takes the form of diminishing the religiousness of indisputably religious activities, symbols, and mottos, such as Justice William Brennan's suggestion that the motto, “In God we trust,” amounted to a form of “ceremonial deism” immune from challenge under the establishment clause. See Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J., dissenting).
22. 403 U.S. 606, 614-616 (1971) (to survive establishment clause challenge law must have secular purpose and effect and must not amount to an excessive entanglement between government and religion).
23. The Laws and Liberties of Massachusetts (repr. from the copy of the 1648 edition in The Henry E. Huntington Library) 20 (Barnes, Thomas G. ed., Leg. Classics Lib. 1982)Google Scholar.
24. See Hamburger's criticism of the “wall of separation” metaphor for having “simplified and impoverished discussions of religious liberty in ways that have obscured the necessarily complex and textured relationships between civil and religious societies.” (482).
25. I discuss the Puritans' attempt to mark out the “distinct” boundaries of church and state in Hall, Timothy L., Separating Church and State: Roger Williams and Religious Liberty 62–63 (U. Ill. Press 1998)Google Scholar.
26. Witte, John, Religion and the American Constitutional Experiment: Essential Rights and Liberties 25 (Westview Press 2000)Google Scholar. Compare also Professor Carter's observation that the refusal of Puritans in the Massachusetts Bay Colony to allow ministers to officiate at weddings amounted to a kind of “separation.” Carter, Stephen L., Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 295 (2002)Google Scholar.
27. See for example John Witte's suggestion that Revolutionary era Baptists and Methodists “were largely united in their insistence on liberty of conscience, disestablishment of religion, and separation of church and state.” Witte, supra n. 27, at 28-29. Consider also the assumption implicit in one scholar's attempt to trace the intellectual origins of the Establishment Clause, and thus “to answer the question why the Framers thought separating church and state was a good idea.” Feldman, Noah, The Intellectual Origins of the Establishment Clause, 111 N.Y.U. L. Rev. 346, 349 (2002)Google Scholar (footnote omitted). Hamburger is not shy about contrasting his thesis with the received wisdom of notable scholars such as Edmund S. Morgan, Bernard Bailyn, Gordon S. Wood, William G. McGloughlin & Leonard Levy. (354 n. 43). For an intriguing view that contradicts both Hamburger and the standard view, see Curry, supra n. 10, at 23, which suggests that the idea of a “separation” between church and state fits more comfortably within the medieval notion of Christendom than it describes the change brought about by the religion clauses of the first amendment. “Christendom,” he argues “separated the sacred and the secular powers but assumed that both would cooperate in upholding and promoting Christianity.” Id. The religion clauses removed from government all power over religion. Id. at 20-22.
28. (“Nor could Baptists or other evangelical dissenters, whose preachers had long campaigned for religious liberty, accept separation's implication that the clergy had no right to preach politics.”) (178).
29. Compare Thomas Curry's recent criticism of historians who project “into the past a definition of the establishment of religion based on logical analysis, instead of empirical historical evidence.” Curry, supra n. 10, at 13. Curry has chiefly in mind those who advocate reading the establishment clause to permit non-preferential aid to religion. See id. at 13-17, 20-21.
30. Carter, supra n. 27, at 293.
31. Rae, Douglas, Equalities 4 (Harv. U. Press 1981)Google Scholar. When Hamburger is careful, he distinguishes between different versions of separationism. See for example his reference to “secular separation” as distinct from “Protestant separation.” (370).
32. See e.g. Howe, supra n. 7, at 8-9.
33. See Hanson, Charles P., Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England 4–5, 14, 219 (U. Press Va. 1998)Google Scholar.
34. If anything, Separation of Church and State might have benefited from a slightly more aggressive editorial pen when it comes to the serial quotations from primary sources.
35. Less than forty pages remain in Hamburger's book when he finally turns to the Supreme Court's pronouncement in Everson v. Board of Education about what the establishment clause meant.
36. Thus, while I depart from Steven D. Smith's contention that there is no principle of religious liberty, I am drawn to his proposals for how courts, animated by largely prudential concerns, might decide cases in this area. See Smith, Steven D., Getting Over Equality: A Critical Diagnosis of Religious Freedom in America 62–82 (N.Y.U. Press 2001)Google Scholar.
37. Howe, supra n. 7, at 174.