Almost everyone has heard of the doctrine of the "separation of church and state."
Most Americans believe that it's in the United States Constitution.
But there is no such phrase in the Constitution.
And there never was—for a simple reason: The Founding Fathers never intended for church
and state to be completely separate. They saw religion—specifically religions based
on the Bible—as indispensable to the moral foundation of the nation they were creating.
So, where does that phrase come from? It comes from one brief letter that Thomas Jefferson
wrote to the Danbury Baptist Association in 1802.
At the end of a very long sentence in which Jefferson affirms his conviction that religious
belief should be a private matter, and that the government should not interfere with such
matters, he uses the phrase “building a wall of separation between Church & State.”
And that’s where the phrase lived, undisturbed—lost in Jefferson’s voluminous correspondence—for
almost 150 years. But more on that in a moment.
First, let’s discuss what the Constitution actually does say about religion and its role
in public life. The answer is found in the First Amendment to the Constitution.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof."
It’s plain what those words mean. The federal government could not establish a national
religion, the common practice in Europe. The United States was going to be different. Americans
would be free to follow the religion of their choice.
When James Madison first proposed what eventually became the First Amendment, his original wording
was that "no religion shall be established" by Congress. But that language was later
modified after it was pointed out that this might be taken to mean that the government,
including the state governments, had no interest in religion at all. The Founders did not want
this.
As George Washington said in his Farewell Address, "Religion and morality are indispensable
supports of our political prosperity." Washington’s view remained the nation’s view throughout
the 19th century and into the twentieth, but that changed in 1947.
In that year, in the case of Everson v. Board of Education, the Supreme Court ruled in a
5-4 decision that under the First Amendment, neither a state nor the Federal Government
could "pass laws which aid one religion, aid all religions, or prefer one religion over
another."
For the first time in American history, the First Amendment was not only about the prohibition
of establishing a national religion, it was also about not giving any encouragement to
any religion.
The modern “strict separation” view was born. And where did the five Justices look
for support for their argument? Not the Constitution, because there was nothing in the Constitution
to help them, but to that one phrase Thomas Jefferson wrote back in 1802.
How ironic, that the author of the Declaration of Independence, which recognizes the proposition
that human beings have inalienable rights from their “Creator,” and not from government,
was now being used to separate religion from the public square.
For Jefferson and the other Founders, religion was central to the entire American project.
The Declaration of Independence and the Constitution are just two of countless examples where the
government acknowledges its debt to God.
As the famously liberal Supreme Court Justice William O. Douglas wrote in the case of Zorach
v. Clausen just five years after the Everson decision, "We are a religious people, whose
institutions presuppose a Supreme Being."
The Founders would certainly have agreed. Following Everson, the nation’s moral infrastructure
began to crack—at first slowly and then more rapidly. In 1962, the Supreme Court struck
another blow. It ruled in Engel v. Vitale that a generic school prayer violated the
Court’s new definition of the First Amendment.
Listen to the words of that school prayer: “Almighty God, we acknowledge our dependence
upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.
Amen.”
The prayer was not specific to Christianity or to any religion. Since then, the "separation
of Church and State" metaphor has been used to remove God and religion, piece by piece,
from American public life. Are we a better society for it? It’s hard to argue that
we are. Almost every cultural and ethical indicator—marriage rates, birth rates, the
number of Americans giving to charity—has declined since God and religion have faded
from American life.
Meanwhile, children without fathers in their lives, behavioral problems in schools, and
crime have gone up dramatically. And all because of one vote, in one court case, based on one
sentence in one letter. On such things do nations and history turn.
I’m John Eastman, Professor of Law at Chapman
University and a Senior Fellow at the Claremont Institute, for Prager University.