Is the ‘Separation of Church and State’ Found in the Constitution?

In the debate for the Delaware senate seat between Republican candidate Christine O’Donnell and Democratic candidate Chris Coons sure stirred up a lot of chatter both about the topic of “separation of church and state” and Ms. O’Donnell’s question, “Let me just clarify: You’re telling me that the separation of church and state is found in the First Amendment?”

Photo of the US Constitution taken in the rotunda of the National Archives photo Mr. T in DC via Flickr

While the audience of law professors and students at Delaware’s Widener School of Law gasped and chuckled at Ms. O’Donnell’s response and the media in general slammed her on this, the fact is history is actually on her side.

The metaphor of the “separation of church and state” is frequently incorrectly thought to be a phrase out of the Constitution. It has been used extensively since the 1940s as a way of eliminating religion from the public arena.

What does the 1st amendment actually say?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The first part is recognized as the “Establishment clause” and the second part is the “Free Exercise clause”.
Was the 1st amendment put into place to regulate the religious affairs of the states and localities? The answer is a resounding NO.

From the writing of the Bill of Rights, the 1st amendment was understood to have no bearing on state or local policies. Even Chief Justice John Marshall, who was often not a friend to the Constitution, wrote in 1833 in the case of Barron v. Baltimore, “the Bill of Rights was adopted entirely in response to the idea that the federal government might be a threat to traditional individual rights and to states governments’ traditional powers”. They were clearly written because of the founder’s fear of federal overreaching. The religion clauses were always understood to reserve those rights to the states.

The First Amendment was to ensure that the Congress could not establish a United States religion nor could the Congress interfere with the individual states, many of them like Connecticut and Massachusetts and seven other states has established churches and others had religious requirements from their colonial periods.

From the time that Marshall wrote that, the 1st amendments religion clauses did not form the basis for any Supreme Court decision for a century.

So if the phrase “separation of church and state” is not found in the First Amendment or in the Constitution as a whole, where did it come from?

In 1802, Thomas Jefferson wrote to the Danbury, Connecticut Baptists explaining the wall of separation of church and state was essentially erected to protect them.

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

So what changed?

A really despicable man named Justice Hugo Black, a member of the Supreme Court, former Senator from Alabama and Ku Klux Klan member who eventually became Kladd of his Klavern, where he was responsible for administering oaths about white supremacy and “separation of church and state”.

His decisions in the 1940 case Cantwell v. Connecticut and the 1947 decision of Everson v. Board of Education of Ewing Township which turned the religion clauses of the First Amendment on its head.

First he claimed that the First Amendment Establishment clause pertained to state and local governments and brought the “wall of separation of church and state” phrase out of the history books and totally bastardized it.

He even made false claims about Thomas Jefferson’s role (the original author of the wall of separation of church and state phrase) role in the Establishment clause.

Jefferson was not a member of Congress when the First Amendment was drafted nor was he a member of the Virginia Assembly when it was ratified.

Much of the history books also leave out the incredible influence of the Ku Klux Klan during the beginning of the last century. The KKK enjoyed huge political power at that time and had added Catholics to their list of groups to hate. Even the Klansman’s Kreed included the statement “I believe in the eternal Separation of Church and State”, something Justice Black certainly subscribed to.

Does school prayer establish a National religion? Does “In God we Trust” establish a National religion? The answers to these questions are of course not. But for the past 70 years or so, the use of the metaphor “the wall of separation of church and state”, which is not constitutional in any way, has been used by the Supreme Court and those against the Christian religion to push religion completely out of the public discourse.

The fact that the audience at the Widener College of Law laughed at Ms. O’Donnell’s question like she was a total buffoon (I do admit I am no fan and find her to be a “Palinite” neocon) and Mr. Coon, a Ivy League educated lawyer saying the statements he said, certainly makes me wonder what is really being taught in law schools in America.

Ms. O’Donnell is this case, in my opinion was absolutely correct.