In my previous post, I gave a basic history of how the Incorporation Doctrine has restricted religious liberty and the power of the states to create their own laws. Long before the Incorporation Doctrine, the founders discussed how to integrate religion and politics. If it is not the most misunderstood political phrase in America, then the idea of separation of church and state is surely near the top of the list.
Citing the First Amendment of the United States Constitution, opponents of religion claim, “Congress shall make no law respecting an establishment of religion,” as if it somehow plays the trump card. Sadly, a good number of religious people do not know how to respond.
There are two mistakes that are made when opponents of religion make this reference. First, they neglect to continue quoting the First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It seems, then, that the federal government wanted to remain neutral on this issue. But what about the states? The First Amendment makes a qualification that, “Congress shall…”, while the Tenth Amendment of the federal constitution leaves that possibility of politico-religious matters to the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As Steven Waldman, author of Founding Faith wrote, “[James] Madison reluctantly had to concede that the First Amendment would only apply to the federal government, not to state or local governments, which could aid—or even oppress—religion as much as they wanted.” And historically speaking, this is exactly what they did (as we will see in the next paragraph).
The second mistake made is in using the phrase “separation of Church and State” with the meaning that religion should stay out of government, supposedly attributed to Thomas Jefferson. However, that is not what Jefferson meant when he wrote of “building a wall of separation of Church and State.” The Danbury Baptist association of Connecticut was a group of churches that received religious persecution from the official state church of Connecticut, the Congregationalists. During their persecution, they wrote:
“we are sensible that the President of the United States, is not the national Legislator, & also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President … will shine & prevail through all these States and all the world till Hierarchy and tyranny be destroyed from the Earth.” (emphasis mine)Jefferson’s response letter was written to assure the Danbury Baptists that they were safe from federal persecution. As the Danbury Baptists asserted, they knew that the President or even Legislative branch of the federal government could not overstep its power to stop the state of Connecticut from persecuting the Baptists. Was Jefferson’s purpose to assure the Baptists of their religious freedom within the state of Connecticut? No, for that would contradict the ‘respect or prohibit’ clause. Was it to sound the bell of the separation of church and state? No, for that too would contradict the ‘respect and prohibit’ clause. The best explanation of this is that the Baptists wanted to encourage Jefferson to continue being a light to the nation, individually, as he was in the state of Virginia, and that through the correct legislative means, the state of Connecticut would cease its persecution of Baptists. Jefferson replied that as President he would privately work for the progress of religious liberty in the state of Connecticut, to the extent that those natural rights do not conflict with a man’s social duties. That is, he had no legal power to stop the state of Connecticut, but he might try to influence the Connecticut legislators to change the state law. Unlike the position taken by religious opponents and the position takes by religious supporters, this understanding makes the best sense of the correspondence between Jefferson and the Danbury Baptist Association.
“The First Amendment was a grand declaration that the federal government couldn’t support or regulate religion—but it was also a grand declaration that states absolutely could.” – Steven Waldman, Founding Faith
