Witham: Church, state 'wall' not idea of Jefferson
By Larry Witham - The Washington Times
New research on Thomas Jefferson's "wall of separation" between church and state shows that Jefferson never intended it to be the iron curtain of today, which instead was built on anti-Catholic legal views in the 1940s.
Though the new scholarship has received good reviews for exploding a "Jeffersonian myth" about a wall against religion, others say it is too late to tear down a barrier that Americans feel comfortable with.
"What we have today is not really Jefferson's wall, but Supreme Court Justice Hugo Black's wall," said American University professor Daniel Dreisbach, whose forthcoming book explores how Jefferson coined the "wall" metaphor.
Mr. Dreisbach's arguments parallel those of University of Chicago law professor Philip Hamburger, whose new book also says Justice Black's anti-Catholicism - learned in the Ku Klux Klan - influenced his 1947 ruling that the First Amendment created a "high and impregnable" wall between religion and government.
The two authors say the Founders did no such thing and that the "wall of separation" has become a "lazy slogan" for judges and politicians.
In the Supreme Court's 1947 Everson decision - forbidding New Jersey to spend state education funds for religious education - Justice Black cited the phrase "wall of separation between Church & State," from Jefferson's Jan. 1, 1802, letter to a group of Baptists in Massachusetts.
The new scholarship argues that the Virginian used that metaphor in hopes of winning support in New England - then a stronghold of the rival Federalists - rather than as the definitive interpretation of the First Amendment.
"Jefferson worked with his New England political advisers on the letter," said Mr. Dreisbach, who five years ago began looking at Jefferson's original draft, the political advice and the electoral setting of the period.
The letter actually "backfired" by alienating the Baptists, he said. "The Baptists advocated disestablishment of the Congregationalists in New England, but they were not for separation of religion from public life."
This political interpretation of Jefferson's "wall" caused a national stir when it was part of a 1998 Library of Congress exhibit, to which Mr. Dreisbach contributed.
Historian Robert Alley, who argues that Jefferson wanted a secular public square, rallied other scholars in protest, saying the exhibit "ignores the past 60 years of Supreme Court opinions that analyzed Jefferson's phrase."
With the new books, more emphasis is being thrown on Justice Black's use of Jefferson's phrase.
"You can't understand the period when Justice Black was on the court without understanding the fear American elites had of Catholic influence and power," said Mr. Dreisbach, who is not a Catholic.
Alan Wolfe, director of the Boisi Center for Religion and Public Life at Boston College, is impressed by the new findings but doubts they can make a difference.
"I think it is terrific scholarship, but I don't think it can change anything," said Mr. Wolfe, who reviewed the Hamburger book and has surveyed public opinion on politics and religion.
"The 'wall' idea has taken on a life of its own and is part of our custom and law," Mr. Wolfe said. "Americans love God and hate politics, so they ask, 'Why mix the two?'"
He said Catholics today are comfortable with church-state separation, as every religion must be in the United States. "One day, a group of [U.S.] Muslim thinkers will come up with an idea of 'separation' that works for them."
Stanley Katz, a Princeton scholar, said the new data on the "Jeffersonian myth" will have a "profound impact on the current law and politics of church and state."
In the past two years, Supreme Court Justices Clarence Thomas and Antonin Scalia both have argued that modern anti-Catholicism produced the idea that "sectarian" groups create conflict and must be walled off from public support.
"It was an open secret that 'sectarian' was a code for 'Catholic,'" Justice Thomas wrote in a concurring opinion two years ago. "This doctrine, born of bigotry, should be buried now."
The term "sectarian" was first used in a federal ruling on church-state issues in 1948.
Mr. Dreisbach said public debate on the new scholarship may help reverse the conventional wisdom that society must be secular and religion confined to private opinion.
"Religious citizens should be able to compete in the marketplace of ideas on equal terms to other groups," he said.
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