ANOTHER BRICK IN THE WALL: The Separation of Church and State

Tuesday, January 6, 2004

The First Amendment of the Constitution declares in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What did this amendment mean to the founders who wrote it? Did they intend to establish an inviolate "wall of separation between church and state"? Or was their intent instead to merely preserve religious freedom and prevent the establishment of a national religion?

Recorded on Tuesday, January 6, 2004

Peter Robinson: Today on Uncommon Knowledge: Church and State--tear down this wall?

Announcer: Funding for this program is provided by the John M. Olin Foundation.

[Music]

Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: did the founders really intend to build a wall of separation between church and state?The First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." What did that amendment mean to the men who wrote it and ratified it? Did they truly intend to separate church and state or did they intend only to prohibit the establishment of a state religion? To put it another way, what would the founders have thought of The Pledge of Allegiance, which after all contains the words "under God?"

Joining us today, two guests. Douglas Kmiec is a professor of law at Pepperdine University. Garry Wills is a Pulitzer Prize-winning author and a professor of history at Northwestern University.

Title: Whose Wall Is It Anyway?

Peter Robinson: Two quotations about church and state. Thomas Jefferson in an 1802 letter to the Danbury Baptist Association, first quotation, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should," and here Jefferson quotes the first amendment to the constitution, "make no law respecting an establishment of religion or prohibiting the free exercise thereof," back to Jefferson's own words, "thus building a wall of separation between church and state." Second quotation, legal historian Philip Hamburger, "Because of its history, both its lack of constitutional authority and its development in response to prejudice, the idea of separation of church and state should at best be viewed with suspicion." Thomas Jefferson, Philip Hamburger? Whom do you choose?

Garry Wills: I'm with Jefferson.

Peter Robinson: You're with Jefferson?

Garry Wills: Absolutely.

Peter Robinson: Doug?

Douglas Kmiec: I'm with them both because in the right context, they both could be right. I think Jefferson's separation metaphor has been misunderstood and I think Hamburger is writing to correct it.

Peter Robinson: All right. First Amendment, messy process getting those--the Bill of Rights added to the Constitution, which is ratified without a Bill of Rights. Madison proposes language. The House monkeys around with it. First Congress, House of Representatives, passes seventeen amendments, senate reduces the number to twelve, goes out to the country. Ten are enacted and two are ignored. Now given that the writing and ratification of the First Amendment and the--which of course, contains the Establishment Clause, was such a messy, contentious process, how are we to understand what those who wrote the amendment and those who ratified it understood it to mean? What are the rules of interpretation? Garry?

Garry Wills: Well, you can't really read motive when you judge a law. I think--I have a lawyer expert here. So I think you have to look at the antecedents and especially in this case Madison. He drew it up. He was part of the legislature that passed Jefferson's Statute of Religious Freedom, the first religious freedom statute, I think, in history. So he knew pretty much what he wanted. If there are any--if there's any reason to depart from that, you'd have to give a reason it seems to me.

Peter Robinson: Doug?

Douglas Kmiec: I think those are very important contextual pieces to consider. As someone trained in the law, I would go directly to Madison's introduction of those words. He…

Peter Robinson: To which words? To the text of the First Amendment or to the…

Douglas Kmiec: The text of the First Amendment.

Peter Robinson: All right.

Douglas Kmiec: He brings the first amendment to the floor of the Congress and the immediate reaction of some of his fellow Congressmen is alarm. They view the words as perhaps giving, as they said, too much patronage to those who have no religious faith whatsoever. Madison tries to explain that his purpose is to provide against any federal role, any national role in religion and at the same time, to preserve complete liberty of conscience for the individual. This seems to come--the discussion down--the sentiment was no national church, no coercion under law of belief or practice in matters of religion.

Peter Robinson: Which is approximately the distance from here to Mars of what that Establishment Clause is taken to mean today.

Garry Wills: Well, you have to remember that he was trying to assuage the fears of people who had established churches in their own states. He was saying this is not going to take those away. But clearly he would like to do that or he thought that they should want to do that because that's what he did in Virginia with the Statute of Religious Freedom.

Peter Robinson: He may have been the primary drafter but he didn't ratify it?

Garry Wills: No.

Peter Robinson: So you could say to yourself now wait on the one--Madison may have thought that what was actually enacted and the understanding of what was enacted, didn't go far enough. It may not have been what he wished. Nevertheless what he wished is not what made it into the Constitution.

Garry Wills: Yeah. He knew that what he wished couldn't be done at that point. It's like Lincoln on abolition. You know, he knew that certain things couldn't be done at certain levels.

Peter Robinson: Right.

Garry Wills: So he had an incremental approach to it.

Peter Robinson: Let me try once again. Why does what James Madison thought really matter?

Title: It's the Thought That Counts

Peter Robinson: Philip Hamburger again, "If Madison reconciled himself to language less sweeping than he had used in 1785 and Congress adopted language which did not forbid all legislations respecting religion." So I have--what I would like to do is pin as a moth to a cork board your argument that it's Madison, Madison, Madison, that maybe he didn't get quite what he wanted in the Establishment Clause as it was understood at the time but that it is our duty today to return not to the understanding of the Establishment Clause but to what Madison originally wanted and expand that clause. I--wouldn't you like to join me in just bringing that one down right now?

Garry Wills: Well, I think there are two questions here.

Peter Robinson: All right.

Garry Wills: One, the desirability of separation of church and state…

Peter Robinson: Yes.

Garry Wills: …no matter what was legislated. And therefore later legislation which does come along and it is disestablished in various states at various times afterwards…

Peter Robinson: Right.

Garry Wills: …whether that is approaching an idea that's worthwhile in itself. And I think it is. So that it's not simply a question of we have to go exactly by what Madison--the ratification said. Otherwise, if that were true, we wouldn't have disestablished religion at the state levels as we have.

Peter Robinson: Are you going to let that one go as a matter of constitutional interpretation?

Douglas Kmiec: Well as a matter of constitutional interpretation, I think Garry is right. That…

Peter Robinson: That we simply decide what's a good ideal and read it into the constitution?

Douglas Kmiec: No, that…

Peter Robinson: Dr. Kmiec, please!

Douglas Kmiec: That's not what I heard him say. I heard him say that, in fact, there was a constitutional amendment, the Fourteenth Amendment. That in fact, the drafters of the amendment anticipated that they were incorporating as against the states, the protections that, up until that time, only applied to Congress--that's an entirely constitutional and appropriate way to act. What we're really after is trying to decide what these provisions mean. We've got two provisions. "Congress shall make no law..." Now the states as well as Congress, because of the Fourteenth Amendment…

Peter Robinson: Right.

Douglas Kmiec: With respect to…

Peter Robinson: What was the year of the Fourteenth Amendment?

Douglas Kmiec: 1866 it was discussed, ultimately ratified in 1868.

Peter Robinson: Fine.

Garry Wills: But filling in, there were states acting on their own, states disestablished on their own. So it's a process that's not…

Peter Robinson: Very hard to look at the history and not come to the conclusion that there's an ideal that's blossoming or reaching a kind of fulfillment. Right?

Garry Wills: I think so.

Peter Robinson: You both grant that?

Douglas Kmiec: Well I think that's right. And in fact, there's a recognition that as a matter of natural rights, an individual has the capacity to make up their own mind about faith.

Peter Robinson: We have to spend a little bit of time on the language, separation of church and state and what was meant and understood by that at the time. Jefferson's letter, 1802 to the Danbury Baptist Association, I've quoted it already, contains the famous line about a wall of separation between church and state. Danbury Baptist Association, twenty-six Baptist churches in Connecticut which are being persecuted. There's an established Congregationalist church in Connecticut. Legal historian Philip Hamburger once again, "Jefferson interpreted the constitution to require a version of what his supporters had sought in the heat of the campaign of 1800. Jefferson's letter elevated anti-clerical rhetoric to constitutional law." Douglas?

Douglas Kmiec: The letter has to be understood in its context. The Baptists are being persecuted. He's writing to them saying that in his judgment they should not be, that the government should not be applying any force against them and that as a matter of their free exercise, there should be a separation of church and state. Notice Peter, that's very important. As a matter of their free--I'm not quoting directly.

Peter Robinson: Okay.

Douglas Kmiec: But it's understood that he's talking about their free exercise of religion. He's not contemplating the meaning of "no establishment" at this point.

Peter Robinson: Well, but he's tying it very directly to the First Amendment.

Douglas Kmiec: He is tying it to the First Amendment but the First A mendment has both of those provisions.

Peter Robinson: All right.

Douglas Kmiec: And what happens is is that the Supreme Court of the United States uses this metaphor for the first time, uses this reference for the first time in a famous free exercise case dealing with the Mormons. And whether or not…

Peter Robinson: 1878, I believe…

Douglas Kmiec: …whether or not the state can regulate polygamy.

Peter Robinson: Right.

Douglas Kmiec: Outlaw polygamy even though it is at that point an essential aspect of the Mormon faith. And the separation metaphor is used to say fundamentally that the state can generally not act against your religious practice except where you threaten in the most severe way, public order and safety. And ultimately the court concludes that that practice does that. It then gets transferred--this metaphor--a half century later in a case called Everson

Peter Robinson: 1947…

Douglas Kmiec: …dealing with whether or not a state can provide free bus rides to all schools, whether the school is a religious school or a non-religious school, into an establishment case. And there the metaphor takes on, in my judgment, a mistaken use.

Peter Robinson: Doug mentioned the 1947 Everson case. Let's look at its importance in more depth.

Title: Another Brick in the Wall

Peter Robinson: Tell us about the 1947 case in which Justice Hugo Black quotes Thomas Jefferson's letter to make a separation of church and state constitutional doctrine. And tell us why Justice Black writes correctly.

Garry Wills: Jefferson himself and Madison both thought that the state should not do anything to encourage specific religion or discourage, right? And to give blessing was encouraging or to require prayer, for instance. I go back to what Mark Twain said. Andrew Carnegie said to him you know, Mark, you have to face it whether you like it or not, this is a Christian country. And he said, well I know that Andrew but so is hell and we don't boast about that. My point is that it's not a Christian country. It's a Christian, Jewish, Muslim, Buddhist, Native American, atheist country and all of those are equally good Americans--have all the rights, all the privileges, all the protections. And the reason that they have that as opposed to every other government beforehand which had an established religion is that they said that the individual conscience has to decide on religion. The state can't do that. Now if the state offers social coercion in favor of religion, that's not leaving it up to the individual conscience.

Douglas Kmiec: This is where we have a disagreement. The Everson case of 1947--Justice Black says the Establishment Clause means at least this--and he'll rattle it off as if it's so accepted that no one in the universe could object. But there is actually a hidden--a very hidden leap in the middle of this. First he says the Establishment Clause means no preference for a particular religion. Everybody in the world agrees with that. Should be no national church. This is, of course, what Madison said on the floor of Congress. He'll skip--I'll skip over his middle term and go to his last one. He says there should be no favoritism among religious beliefs. Again, everyone largely agrees.

Peter Robinson: Give him that. Right.

Douglas Kmiec: The middle one is the contentious one. No favoritism for religion over your religion. And here's where there's historical disagreement. Here's where the references to Jefferson's statements and his own practice seem to fall apart and to come in conflict. Let me illustrate why I think that is. The Declaration of Independence, which Dr. Wills has written so well upon, proclaims us to have natural rights from a creator, puts them in a transcendent source so that they're off limits to any political body. And in that sense…

Peter Robinson: This is pretty good. You'll grant all this so far?

Garry Wills: Yeah, sure.

Douglas Kmiec: As Justice Douglas once said in a case, our political institutions presuppose the existence of a Supreme Being. And at the same time, our founders were clever enough to hold a second thought in their mind and that is that all individuals as a matter of natural rights should have the right to believe or disbelieve as they see fit. So notice Peter, two things are happening. In a corporate sense, America's being created with a presumption of a Supreme Being and the origin of rights in that Supreme Being and at the same time, they're saying to every individual, you have complete freedom to deny the presumption if you wish. You can't take it out of our corporate existence, our corporate history, but you can make your own way in terms of your own individual life. When Justice Black in that 1947 case says government can't prefer religion over irreligion, it's too blunt a statement because in some ways, he reads out the Declaration of Independence. He reads out that presupposition. And what happens later in subsequent cases is that individuals who are trying to do no more than exercise their own individual rights of religion and prayer or faith, when they come into the public square, are actually discriminated against because Justice Black is perceived to have established that neutrality means secularity when in fact…

Garry Wills: And he's also going beyond the case.

Peter Robinson: Over the course of the nineteenth century, the interpretation of the Establishment Clause changed. How come?

Title: Barbarians at the Gates

Peter Robinson: I want to put just very briefly Philip Hamburger's analysis of how we get from the Establishment Clause and the modest understanding of its meaning to Justice Black and the more dramatic understanding of its meaning. And Hamburger--I put this to you simply because I'd like to hear you comment on it. Hamburger says there are fundamentally two developments. And one of them, the first is anti-Catholic bigotry. 1840, Catholics begin claiming equal rights to public school funds in New York. Philip Hamburger, "This presumptuous demand shocked Protestants, many of whom responded by asserting separation of church and state as a constitutional principle." No problem funding religious schools until the Catholics come along. Hamburger also points out that Justice Black is himself a nativist and a former member of the Ku Klux Klan. And so you get read right into his life if not into the decision that kind of nativism of the middle of the nineteenth century that lingers well into the twentieth. And the second is secularism. I quote Hamburger again, "Separation appealed to those whose liberal theology or whose sense of distance from communal, clerical religion led them to think of themselves as intellectually dependent and in America's ever more secular society, separation also attracted expanding numbers of non-religious persons." Separation does not arise from the constitution. It arises from modern, cultural and intellectual trends. Refute that if you will.

Garry Wills: Well, I think the first one is a red herring. And the second one depends on…

Peter Robinson: Red herring in what sense? It's true but it doesn't matter.

Garry Wills: Over prejudices. Yeah, it doesn't matter. There was anti-Catholicism--there's anti-Catholicism in the Declaration of Independence where he protests against the recognition of the religion in Canada. There's anti-Catholicism in all of our history. And the idea that religious schools should not be supported, Jefferson has that and that's why he would have no Chaplain or Chapel at the University of Virginia. This is not something that came out just because of anti-Catholicism. I think he's right that a developing secularism is part of it. I see that as desirable. I see it as development of the enlightenment.

Douglas Kmiec: You see I think the…

Peter Robinson: Comment on Hamburger.

Douglas Kmiec: I think the history that Dr. Hamburger very carefully lays out is a very troubled history. It's a black mark on who we are as a people. It's repeated itself since then in several other contexts. But there's no doubt that he lays out with I think no bias and a great deal of objectivity, that there was a period of time in which those immigrating from Poland and Germany and Ireland who happened to be largely Catholic sent enormous fear through those who were already here. It did harm us. It harmed us in two ways. One, for a long period of time, Catholics had--and Jews and others who immigrated during this period, had to live under this bias. Second, it worked its way into various state constitutions, some thirty-seven constitutions have anti-religious provisions, largely because of this period and it still causes…

Peter Robinson: Still on the books?

Douglas Kmiec: It's still on the books. And it's being litigated before the Supreme Court of the United States this term…

Garry Wills: That's why I say it's red herring though. It goes to the motive. If they're doing it for this motive, what they're doing must be wrong. You can do the right thing for the wrong reason. So what they were doing if it was okay in terms of something else is fine. And working out the prejudices against Native Americans, against Jews, against Mormons, is part of the American process. And I think it's--we're able to do that so well because of the Enlightenment and because of the First Amendment.

Peter Robinson: From the past to the present, has the notion of a wall of separation now become an irreversible part of constitutional doctrine?

Title: Case Closed?

Peter Robinson: The Everson case is 1947. So we've got almost six decades in which this strong reading of the wall of separation between church and state is constitutional doctrine. So at this stage, whatever the Establishment Clause was understood to have meant back in the beginning, should not the court simply accept settled constitutional doctrine?

Douglas Kmiec: I don't think so because of course the history is not that uniform. Since the '80s until the present, there has been a revival of, I think, a more accurate, a more complete, a fuller history of the no Establishment Clause. And one of the things that the Court has been careful to reconcile especially in cases, for example, dealing with funding of schools, that if the monies are paid to a parent or paid to a student and the student or the parent says I'd like to go to Notre Dame rather than to Indiana, then that's the student's decision. That's as much an exercise--a free exercise--of religion as that which Thomas Jefferson was praising the Baptists for and saying they should…

Peter Robinson: 2000 case, Mitchell v. Helms, Court holds that students in religious schools could receive certain state funded services that were being made available to students in secular private schools. Justice Clarence Thomas, strict separation was "born of bigotry and it should be buried now." What do you make of that?

Garry Wills: Well, that would be a tragic thing. Our history is really made glorious by the fact that we're the very first country that decided you don't have to have an official religious sanction to exist as a country. Now there were references to "under God," etc. And I think that whole middle area you're talking about is largely cultural or a reflection of the time. It's the--it's a Christian culture in some degree. Whether you want to make that a principle and say non-Christians therefore can't have the same rights is a different thing.

Peter Robinson: We're running out of time but are you going to let him consistently wrap--he claims all the glory for himself. All that you hear--well virtually hear the national...

Garry Wills: For myself? For Jefferson, Madison…

Peter Robinson: You can all but hear America the Beautiful swelling in the background as he speaks about the hard position of a tall and solid wall of separation between church and state.

Douglas Kmiec: Well I think I would prefer to stay with the text of the Constitution. It is a…

Peter Robinson: That was pretty rough.

Douglas Kmiec: It is a freedom of religion. It is a freedom that is secured by preventing the government from prescribing a faith or proscribing mine. And if I bring faith into the public square, whether as an individual or in a public capacity, so long as I'm not using law to coerce you to believe against your will, I'm being faithful to our founders' conception as I understand it.

Peter Robinson: "In God We Trust" on coins. No problem?

Douglas Kmiec: "In God We Trust," "Under God," in the Pledge of Allegiance. These are accurate, historical descriptions of the nature of our country, the presuppositions that our institutions understand a Supreme Being as being at the origin of our rights.

Peter Robinson: Which are also glorious. I want to get the word glorious in there. "In God We Trust" on coins?

Garry Wills: It's cultural. It's a cultural thing and I don't think the court should even get involved with that. I agree entirely with what he said. You have the right to act on your religious convictions formed by your conscience so long as you don't use law or power to prescribe to others.

Peter Robinson: Last topic: a couple of predictions about how the Establishment Clause will be interpreted by the current Supreme Court.

Title: Anti-Establishmentarianism?

Peter Robinson: June 2002, U.S. Court of Appeals for the Ninth Circuit declares the Pledge of Allegiance unconstitutional because it contains the words "under God." This is a decision now before the Supreme Court. This show will air before the Supreme Court hands down its decision. So I ask you to make bold and predict what the court will do. I gather you don't believe they should be taking the case at all or they're not--or once the Ninth Circuit declared the pledge unconstitutional…

Garry Wills: They have to, yeah.

Peter Robinson: They have to take it. So what will they do and what ought they to do? Garry?

Garry Wills: Well I have no complaint about that except in one circumstance…

Peter Robinson: About--I'm sorry…

Garry Wills: About…

Peter Robinson: The pledge?

Garry Wills: "Under God" being in it.

Peter Robinson: Right.

Garry Wills: Except in one circumstance. If it's prescribed in school that you have to say it, that would be a problem I think. You know, I have a good friend who not that long ago, twenty-five years ago, he's a Jew who had to say the "Our Father" every morning in school. And it seems to me that's clearly out and it has been since. This teeters on the verge of that even if you--you know, there's a kind of social coercion but I don't think it's worth fighting about.

Peter Robinson: You don't? Doug?

Douglas Kmiec: I think it's an extremely important case. I think the Ninth Circuit was wrong in its ruling. I think the words "under God" were added by the 83rd Congress very deliberately to say we're completing the description of our nation. That nation that includes both the Declaration of Independence and the constitution--that you can't understand one without the other. And I think for the Ninth Circuit to strike the words is to say you can. And I think they're mistaken. My hope is is that the Supreme Court will rectify that mistake. I think this is so bedrock that I cannot envision that the Supreme Court will strike…

Peter Robinson: Even the Court as it is currently constituted will decide right.

Douglas Kmiec: Even as it is constituted with its depleted membership in this instance, will decide correctly.

Peter Robinson: Which Justice has recused…

Douglas Kmiec: Justice Scalia has recused himself.

Peter Robinson: He has.

Garry Wills: You know, our friend the motive reader about anti-Catholicism would say about the congressional passage of that, it was anti-communism that made him do it.

Douglas Kmiec: Yes, of course, because the 83rd C ongress was very concerned about individual freedom. And what they recognized about communism and those who advocated was that it was total state and individual freedom would be…

Garry Wills: Godless--Godless communism.

Douglas Kmiec: …oppressed by it

Peter Robinson: But that's--why not define the nation...

Garry Wills: No, I'm just saying…

Peter Robinson: All right.

Garry Wills: …the motives are often not terribly important.

Peter Robinson: All right. Gentlemen, Douglas Kmiec, Garry Wills, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.