Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.’” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.
But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:
The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.
So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.
Drakeman on Original Intent, Original Meaning, and Religious Liberty
I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent. Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism. First, are there still advocates (besides Don) of the utility of original intent originalism floating about? I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists. I should also note that Don, from my reading of his work, is not exclusivist about original intent. He simply thinks it might be useful evidence to consider. Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)? There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?
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Posted in Commentary, Marc O. DeGirolami
Tagged American History, Constitutional Interpretation, Establishment Clause, Originalism, Religion in America