Book Review

Misleading Metaphor Or Directly On Point?:
Thomas Jefferson and the
Wall of Separation between Church and State
by Daniel L. Dreisbach (New York Univ. Press, 2002)

reviewed by Richard A. Forsten, Esquire

There is probably no more famous constitutional metaphor than Thomas Jefferson’s “wall of separation between church and state.” Written in an 1802 letter to the Danbury Baptist Association of Connecticut, the phrase was cited once in an 1879 Supreme Court case before being turned into a virtual bedrock of constitutional law in the 1947 Supreme Court case of Everson v. Board of Education. But as the English jurist Lord Mansfield warned, “nothing in law is so apt to mislead as a metaphor;” and so, in his book Thomas Jefferson and the Wall of Separation between Church and State, Professor Daniel L. Dreisbach takes a careful look at Jefferson’s 1802 letter, reviewing how it came to be written and asking critical questions about what precisely Jefferson meant. More importantly, Dreisbach asks whether it even makes sense to base constitutional theory on a short letter written years after the adoption of the First Amendment by someone who was not a member of the Congress that sent the amendment to the States for ratification. This is not a book about church/state relations, and how the Court should go about applying the First Amendment; rather, this short, but interesting, book is about the history of a metaphor contained in a letter long forgotten, until resurrected by the Supreme Court some 145 years later.

More than any other of the Founding Fathers, Thomas Jefferson took the separation of church and state seriously. As president, unlike his predecessors, Jefferson would not issue proclamations for days of public thanksgiving and fasting, as had been done by Washington and Adams, and as was fairly common for state governors to do. Thus, when he received a letter from the Danbury Baptist Association in December, 1801, congratulating him on his election, Jefferson viewed the opportunity as one “by way of answer, of sowing useful truths & principles among the people, which might germinate and become rooted among their political tenets.” In other words, Jefferson anticipated this his letter would be reprinted in newspapers at the time (as, in fact, it was), and he therefore viewed his letter as a chance to make a political statement. He hoped to use his response to explain why he did not issue proclamations for public thanksgiving and prayer, but ironically he ended up deleting those passages from the final draft of the letter based on advice from his attorney general. So it was that Jefferson sent a short letter of less than 250 words to the Danbury Baptist Association, stating in its most famous passage:

The letter was reprinted in several newspapers at the time, but was otherwise largely forgotten. It was included in various collections of Jefferson’s correspondence, but it was not until the Supreme Court's 1879 decision in Reynolds v. United States (upholding a criminal conviction for polygamy despite Mormon arguments that such a conviction violated the First Amendment) that the Danbury letter and Jefferson’s famous metaphor were first cited as authoritative. In particular, the Reynolds Court explained that the Danbury letter could be regarded as “almost an authoritative declaration of the scope and effect of the [First] [A]mendment.” Interestingly, precisely how the Court came to cite the Danbury letter is something of a mystery, as it was not a part of the record below nor was it cited in any of the briefs to the Court. Moreover, the Reynolds Court failed to observe that Jefferson was Minister to France at the time the First Amendment was approved and debated in the First Congress. In fact, the Court offered no explanation as to why the Danbury letter should be deemed “authoritative” other than to observe that Jefferson was one of the acknowledged leaders who had called for a Bill of Rights that would include a provision for religious freedom. In any event, the point the Reynolds Court was ultimately making was that Congress remained free to regulate on general matters of public concern (such as prohibiting polygamy), but could not regulate or attempt to regulate religious opinion or beliefs.

And so the Danbury letter entered the political and constitutional firmament. The letter was quoted in Reynolds, but nothing specific was made of the “wall” metaphor. Nothing more was said with respect to the Danbury letter until some seven decades latter, when the Supreme Court, citing Reynolds, rediscovered Jefferson’s metaphor in Everson v. Board of Education, and explained that “In the words of Jefferson, the [First Amendment] . . . was intended to erect ‘a wall of separation between church and State.’ ” Thus, the Court finally elevated the wall metaphor to the status of constitutional law. Indeed, the Court went on to state that the wall “must be kept high and impregnable.”

Since Everson, Jefferson’s phrase has become both famous, as well as the subject of criticism. Ascribing a precise meaning to the wall has been a source of some difficulty, as the question can be asked: what’s meant to be walled in, and what’s meant to be walled out? Justice Jackson once quipped that absent sure legal guidance, the justices “are likely to make the legal ‘wall of separation between church and state’ as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded.” Justice Thurgood Marshall warned that “[t]he metaphor of a “wall” or impassable barrier between Church and State, taken too literally, may mislead constitutional analysis.” Chief Justice Rehnquist has been perhaps the most direct critic of all, arguing that: “[i]t is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Dreisbach’s book is an interesting look at a simple metaphor, how it came to be written, and how it came to be enshrined in constitutional law. Jefferson’s hope of “sowing useful truths & principles among the people, which might germinate and become rooted among their political tenets” certainly seems to have come true in a way perhaps even he might not have imagined. Dreisbach’s book, though, is not an attack on the concept of separation of church and state; rather he limits his analysis to the history and usefulness of Jefferson’s metaphor. It is the uncritical repetition of the wall metaphor which troubles Dreisbach. He quotes Justice Frankfurter, who once warned that: “A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.” Ultimately, Dreisbach concludes that even without resort to the “wall of separation” metaphor, church/state relations and First Amendment jurisprudence would probably be about the same, but that the debate and analysis would have been more candid, straightforward and rigorous. In the end, then, Dreisbach’s book may be more about the dangers of metaphors in general, rather than the “wall of separation” itself.

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