Good news friend Georgie, it appears that you can have your cake and eat it too! Fortunately, you can maintain your deep respect for Rehnquist and Scalia (which, we might add, we share as well) while simultaneously siding with Jefferson and Madison (two of our personal heroes), because at least on this issue, they all agree. Well, sort of.
Your Wikipedia article suggests that Rehnquist was the first to posit the notion that the “establishment clause was intended to protect local establishments of religion from federal interference.” Actually, he stole that idea from Jefferson.
We figured that if this discussion went far enough along, the Danbury Baptist exchange would likely raise its head – this is really getting to the heart of the disagreement over usage of the “wall of separation.” Even though we wrote a short research paper on this in college, we had to go back and reread the letters again last night. The full text is here, if you want to check it out: http://www.gainesvillehumanists.org/baptist.htm
To put it briefly, the Danbury’s were concerned that their state’s constitution, in granting religious privileges, made those privileges a creation of the state, rather than an inalienable right recognized by government (such as those inalienable rights of life, liberty, pursuit of happiness). Connecticut’s state church was the Congregationalists, and Baptists were frankly afraid that at some point, if the Congregationalists had enough power, they would force the Baptists to conform their religious beliefs, i.e., the state would encroach on the Baptist’s free exercise.
Note that in Jefferson’s reply, he sort of sidesteps some of the issues. He never really discusses the Connecticut constitution, and he never really acknowledges the Danbury’s request that he assist them in their state battle with the Congregationalists. Instead he refers strictly to the Federal Constitution, and reminds the Baptists that as far as American goes, the legislature has declared that Congress will make no national law respecting the establishment of religion, or prohibiting its free exercise.
To us, this is more a discussion over the once common idea that each state could regulate religion as it saw fit, rather than any national debate over the role of religion in government. Frankly, we find it odd that any single group in modern America would build its entire First Amendment jurisprudence and political/legal doctrine on a few words in a private letter between Jefferson and a bunch of Baptists (after all, it's the Presbyterians who've got it going on, right?) What's more, while Jefferson was no doubt an influential founder, he wasn’t even in the country when the Constitution was drafted. Funny that he is the Con Law expert.
As your Wikipedia article mentions, the phrase has been used in multiple modern Supreme Court opinions, but it was never even mentioned once for nearly the first 100 years of our judicial system (once in 1878), and then not again until Everson (1947). Since then, the courts generally cite Everson as the precedent for this notion of church state separation. And as an aside, you will not once find the notion of separation of church and state in any of the congressional debates that took place when the Bill of Rights were adopted.
Interestingly enough, while Jefferson was a huge proponent of the Bill of Rights, and was initially perturbed that the Constitution did not include one, Madison was in fact opposed to such a Bill of Rights. Madison, like the Danbury Baptists, feared that a Bill of Rights might one day be misconstrued to allow the state to remove religious freedom, since (under the bill of rights) the State had “created” that freedom.
When Madison finally caved to the pressures of the states (many of which were refusing to ratify the Constitution unless it contained a Bill of Rights), he proposed this language for the First Amendment: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.”
It appears to us that he too was concerned mostly with the establishment of a national religion, namely a certain sect within Christianity (i.e. Congregationalist, Baptist, Episcopalian, etc.).
As we read from a lecture on this topic a few weeks ago, Madison was a member of a committee in Congress which chose and paid for Congressional chaplains, and he signed a law as president that gave federal monies to aid a Bible Society in its goal of the mass distribution of the Bible (particularly to the Indians). Our guess is that government action like that today would get struck down by the “separation” clause.
As for the The Virginia Act For Establishing Religious Freedom, we'll have to get to that in another post. Stephen is calling for us to come help him with the cabinets in the baby's room.
To us, the discussion all comes back to our original point – the “separation” phrase is misunderstood, and even more importantly, misused. The Founders created a system that allows us the freedom of exercising whatever religion we choose. You are certainly entitled to argue for a removal of all religion from the public sphere of civil government, and as we mentioned before, we think you have some strong arguments in your favor. But that removal certainly wasn’t the way the system worked initially, nor did the Founders intend it to be designed that way. Further, if our society
has evolved into a post-Christian culture (as some historians argue), whether through increasing religious plurality or a larger number of people who are just not religious at all, we are free to change the system. But the point is that
WE change it, not a group of nine dudes in black robes. And we change it based on legislative initiative, not through those same nine dudes proof-texting their political preferences from private letters and super-legislating from the Bench.
If the Supreme Court assumes that the Constitution has a wall of separation between church and state, and then says that a certain law is violating the Constitution's separation of church and state, they are simply begging the question.
And that’s a phrase we’ll choose to avoid.
Not to mention the missed penalty kick. Let's be honest though, that was a good dose of retributive justice for Johnson's blatant dive in the box.
