Summary: In this episode, I interview Daniel Dreisbach to explore one of the most contested ideas in American political life: the separation of church and state. We trace its deep roots — from biblical sources and colonial debates to Locke, Madison, and the revolution in thinking that made religious liberty a natural right rather than a privilege of toleration. Dreisbach brings to life the theological and political diversity of the colonies, the disestablishment movement, and the surprising ways federalism shaped the First Amendment. He also tells the remarkable story behind Jefferson’s famous “wall of separation” metaphor — complete with a 1,700-pound wheel of cheese — and explains how that private letter later came to dominate Supreme Court jurisprudence. This conversation offers a rich, clarifying tour through ideas that still frame American life today.
Note: The following transcript has been lightly edited for clarity and accuracy.
Garrett Brown: Welcome to Humane Pursuits. My name is Garrett Brown and I’m a research fellow in the humanities at the Mercatus Center at George Mason University and the host of this program.
Today it is my great pleasure and honor to welcome Daniel Dreisbach to the studio. He’s a professor in the School of Public Affairs at American University in Washington, DC. He earned a DPhil degree from Oxford University and a JD degree from the University of Virginia. Following law school, he served as a judicial clerk for Circuit Judge Robert F. Chapman of the US Fourth Circuit Court of Appeals, and for two years, he practiced public interest law specializing in civil and religious liberties.
He has authored or edited 10 books, including Thomas Jefferson and the Wall of Separation Between Church and State, published by the New York University Press; Reading the Bible with the Founding Fathers, published by Oxford University Press; and co-editor with Mark David Hall of a whopping 650-page compendium, The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding, published by Liberty Fund in 2009. Daniel Dreisbach, welcome to the program.
Daniel Dreisbach: Well, thank you so much for having me.
Brown: One of the aims of this program is to revisit some of the core political and cultural concepts in the American experience. Things that perhaps we now take for granted at a time of intense polarization, and at a time when our institutions, once again, are being tested. It seemed right and good to return to fundamentals.
In time, I hope to revisit concepts like rights, property, federalism, separation of powers, freedom of speech, even the meaning of the word happiness, especially in the context of the Declaration of Independence. The Declaration will be 250 years old in 2026, an occasion to revisit those founding ideals and to ask whether they can still provide a guide to our present moment and beyond.
The central concept we’ll be talking about in the first part of the program is the separation of church and state or more fully the wall of separation between church and state. As we’ll see, this concept originates from something that Thomas Jefferson wrote. So today we’re asking Daniel Dreisbach to be our trustworthy guide to these and related issues. Before we get to Jefferson, we ought to set the stage for our listeners. Almost a hundred years earlier, John Locke had put forward his arguments for religious toleration and his and others’ ideas permeated the long 18th century in many ways. Where should we begin?
Origins of the Concept
Dreisbach: Well, that is not a bad place to start, but let’s just acknowledge that debates over the proper relationship between church and state have been part of the human experience for as long as there’s been recorded history. And it’s certainly been a large part of the history of the Western world.
We can go back to the Bible and the words of Jesus of Nazareth who spoke of render unto Caesar that which is Caesar’s and to God that which is God’s, which suggests a distinction between the temporal and the sacred. And we see this debate over the relationship between the realm of the secular and the realm of the sacred ever since.
[There’s] the story of Constantine and the question about what should be the role of the state in support of an official church. And so we’re going to see a history of well over a millennium, a model where the state is providing the aid and support for the church. But when we come to the American founding, we’re beginning to see some new thinking, different ways of approaching that, perhaps sparked in part by the writings of someone like John Locke.
But let’s go to the earliest days of colonial America. Now, most of the colonies followed the Old-World model of one state, one church. We see a beginning of a departure from that in a place like Rhode Island, for example, where in the founding documents of Rhode Island, it says very clearly that the civil magistrate has jurisdiction in only matters of a civil nature; again, suggesting that the state does not control the church. Now again, we’re going to have an ongoing debate over the proper relationship between the church and state throughout the colonial period.
I would suggest to you that by the mid-18th century a new way of thinking has begun to emerge and is being discussed by Americans. Now there’s a consensus that religion plays a vital role in promoting social order and discipline. Civic virtue is vital to self-government. And the thinking of the day is that religion nourishes that civic virtue. But a debate opens in the mid- to late 18th century that I think is going to change the landscape, and the question being asked is, what’s the best way to nurture a vibrant religious culture that’s going to influence the people and society and the culture?
And there was, of course, the Old-World model, right? One state, one church, but this new, innovative idea that emerges here in America is that to have a vibrant religious culture, the best way to do that is through disestablishment. It is by severing the link between the church and the state, where every church, where every religious society has to compete in an open marketplace of ideas. And the public is going to watch what’s happening, and they’re going to very clearly discern what is the purest, what is the best, what is the most efficacious religion in terms of shaping civic virtues, of shaping social order and discipline.
And herein begins, I think, a new and novel experiment in separating the institution of the church from the institution of the state. But I want to underscore once again that there’s general agreement that religion plays a vital role. The question is, how do you nurture religion in a healthy way such that it supports social order, social discipline.
E Pluribus Unum
Brown: As of 1776, is it true that at that time six of the 13 colonies still had established churches?
Dreisbach: Well, I think that’s probably a fair statement. Now we can get into a debate as to what exactly constitutes an establishment. If you had laws, let’s say, supporting a prohibition of blasphemy laws, does that mean that they have an establishment — I’m probably not going to go that far.
So there’s a little bit of debate as to what exactly an establishment looks like, but it’s somewhere in the neighborhood. It’s six, seven, maybe eight states. But they’re declining in number. And by the time we get to the turn of the century into the 19th century, there are only three states that have something resembling a formal establishment. And by 1833 Massachusetts disestablished its relationship with the church. And so that’s oftentimes marked as the last state church in America. And again, that’s 1833.
Brown: Right. I remember Bernard Bailyn’s Ideological Origins of the American Revolution talking about the contagion of liberty and disestablishmentarianism, which is a mouthful, was one of the consequences of the revolution, is that many, even if they held these views before the revolution, extend their notions of liberty to other areas of civic life to religion, and then of course, ultimately, to the institution of slavery.
Dreisbach: Let me mention one other item, by way of context, and that is we find in the New World, British North America, we see a moving of people into the country with a multiplicity of religious backgrounds. And so we find a kind of religious diversity in the New World that we hadn’t really seen in the Old World.
And one of the consequences of that extraordinary religious diversity is it makes having one single established church almost politically untenable, right? The question would be, well, what would become the established church of the United States if it were to follow the Old-World model?
And the answer I think is, there is no single sect that is sufficiently powerful to impose itself on the larger polity. So just as a practical matter, because, again, of that religious diversity that we find in the New World — and it’s an extraordinary diversity of religious sects — that the idea of having an Old-World established church is not really viable. And so it’s not really a matter that’s even contemplated at the time of American independence.
Brown: Yes. There’s a wonderful engraving that appears in one of your books that highlights within one city the many churches and I think even a synagogue. That appears there. Maybe we can reproduce that.
Dreisbach: It’s the skyline of New York.
Brown: The skyline of New York City. Okay.
Dreisbach: Now, another implication of that is from very early on in the colonial experience, Americans are having to have discussions with themselves about how do we live side by side without killing each other, right? Yes. They looked across the Atlantic and saw terrible wars of religion on the other side, and they certainly don’t want to replicate that here. And so they’re beginning to have conversations about how do we, how do we live with each other? How do we tolerate our differences without killing each other?
Brown: And don’t we tend to, now looking back, overstate the homogeneity between the regional cultures? David Hackett Fisher’s book, Albion’s Seed: Four British Folkways in America, talks about the many different folk ways that were related directly to waves of immigration that came out of England and other parts of Europe. But it seems to me that even looking at the difference between the Massachusetts Bay Colony and the plantations South had a very different economic model than the other colonies and early states. Even Maryland had a Catholic character. So we tend to downplay how different they were. Is that right? Does that also accord with your understanding?
Dreisbach: I think that’s a fair comment and I would just extend that. And one of the things that’s giving subtle distinctions, even more than subtle distinctions of the culture of different regions, is the role religion plays within their cultures and the influence of, let’s say, an Anglican culture on the Southern states versus the more Puritan, later congregationalist influences on New England.
You know, we look back from the 21st century and we say, oh, they were 98% Protestant, as if they all met and believed the same thing. I don’t think that’s an accurate way of looking at it. They saw powerful distinctions between these different Protestant religious communities.
Now that could have exploded into the wars of religion like we had seen in the Old World. I think it’s rather remarkable, and we shouldn’t gloss over it, that we don’t have those same kinds of wars here in the New World. Yes, there are scandalous moments of intolerance and persecution here in British North America, but it’s not the kind of war that we had seen in the aftermath of the Protestant Reformation in Europe. And that’s remarkable. That’s remarkable.
Brown: Indeed. But most of the denominations that we’re talking about are roughly in a Reformed tradition. Is that correct? Or how do you describe what those different denominations believed?
Dreisbach: So if we look at the British colonies from Georgia to Massachusetts and New Hampshire we’re going to find that in 1776, more than 98 percent of the white population, those Americans of European descent, would’ve identified with Protestantism. This is just about personal identification. I’m not making any claims about their personal piety, but they would’ve identified with Protestantism.
Now the estimates are that of those Protestants probably in the neighborhood of three out of four — some people say higher, some people say lower; but I’m going to say in the medium there — somewhere between three out of four would’ve identified with what you said. And I’m going to use the same language, the Reformed theological tradition. Now, when I use that term, I am referencing that vein of the Protestant Reformation that we associate with John Calvin as opposed to other veins, such as Lutheranism. Now, there were Lutherans in the New World, but three out of four would’ve identified with that more Calvinistic Reformed tradition.
Now who are we talking about? We’re certainly talking about the Puritans, later the Congregationalists, in New England. We’re talking about the Scotch-Irish Presbyterians who are going to settle all up and down the Atlantic seaboard, and especially going to move out to the Shenandoah Valley and beyond.
We’re also talking, very interestingly, about Baptists. At this time in history, about nine out of 10 Baptists would’ve identified with the Reformed tradition. Now moving into the 19th century, following what we sometimes call the Second Great Awakening, they’re going to begin to move away somewhat from that Reformed tradition. But at this time, nine out of 10 Baptists would’ve identified with the Reformed tradition.
It, of course, includes the German Reformed, the Dutch Reformed congregations that we can find in isolated spots, places like Pennsylvania and New York and other places. So when we speak of this Reformed tradition, which has enormous influence on the general public at the time of independence, that’s who we’re referring to.
Religious Toleration Becomes Religious Freedom
Brown: So a lot of this actually speaks to the difference in character of religious expression in the colonies as it differed from the continent or in England. But are there other ways that the American expression was different? Some other ways that we should note how it was different from the way religious freedom was being conceived of abroad?
Dreisbach: Yes, I think in a couple ways we might see some differences begin to emerge. One of the ways, and this begins really at the time of independence, is that, in the spirit of John Locke, the most liberal and enlightened minds in the colonies were aspiring to a regime of religious toleration. How can we tolerate each other? What is an acceptable state policy of toleration of religion and religious differences?
But here in Virginia, beginning with a debate over the Virginia Declaration of Rights, a young delegate [named James Madison] at the Virginia convention that wrote that document objected to George Mason’s language of toleration. And he said, toleration is not what this revolution is about. He said, what we should aspire to is not toleration, but rather religious liberty, and he draws a distinction between the two. Now again, toleration was viewed as perhaps the most liberal and enlightened policy that could be imagined, but within the constraints of an established church.
And the objection that James Madison has to the concept of toleration is that toleration suggests that there’s some authority that is granting you the privilege of practicing your religion. But if it can grant you that privilege, it can just as easily take it away. And James Madison says that’s not what we’re fighting for here. We’re fighting for natural rights. The concept that the right to practice your faith is an inalienable, indefeasible, fundamental right that is beyond the reach of the civil state and the civil magistrate.
And so here in Virginia, they rewrote the initial language of the Virginia Declaration of Rights from an affirmation of toleration to an affirmation of religious liberty. And I think that is a profound and significant development in thinking about the rights of religion. It may, in fact, be one of the most significant innovations that Americans have made to political thought. That’s how important and significant I see it now.
Another development that I think is worth noting is that increasingly Americans are beginning to imagine a vibrant, healthy religious culture outside the protection, outside the walls of the civil state and the support and aid of the civil state. And that is to say we are increasingly viewing the notion of nonestablishment of religion or disestablishment of religion as not only a possibility, but perhaps even a healthy way. It’s a way in which religion can actually be unleashed from the control of the civil state and can flourish and have even more influence on culture and on people than they had when it was a religious establishment. And I think that too is sort of an innovation in thinking about the role of religion in public life and the relationship between religion and civil authorities.
No Law Establishing Religion
Brown: Right. And we’ll talk about the mutually reinforcing way that religion and education, which is something important to Thomas Jefferson and other framers, both reinforced the experiment in self-government. So we’ll get to that. But we are narrowing in, we’re getting closer and closer to our topic.
And the one stop before we come to Jefferson is the debate over the First Amendment and the Bill of Rights, which was ratified in December of 1791. It reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Or bridging the freedom of speech or of the press, or of the right, of the people peaceably to assemble and to petition the government for a redress of grievances.”
So at the time of the Constitutional Convention and when the core documents were coming together, what were the central concerns? It doesn’t seem as if establishment churches were the only target, right? It seemed as if there were other forces at play, but we’re not quite at a notion of the wall of separation. So, how did the debate go? What were the primary concerns, and what things were left on the cutting room floor?
Dreisbach: Well, I think, we probably should start by thinking of the US Constitution that’s being debated, being framed in Philadelphia in the summer of 1787 as a little bit unlike other constitutions of the time, right? It’s unlike many of the state constitutions, which are getting into more of the nuts and bolts of governance.
Whereas the national Constitution is more of an overarching document of sorts. It’s creating an umbrella under which the existing sovereign states could exist and flourish. And so I think there was a mindset that viewed the nature and the content of the US Constitution a little bit differently than they might have looked at framing a more local constitution. So I would start with that observation.
Now, I think of course the challenge of the moment is how do you create a government that is sufficiently strong that it can pull these divergent states together in some unified way, but at the same time not become so dominant and so powerful that it’s very power threatens the rights and liberties of not only the states but also the people within the states.
When I think about the topic of religion and the American Constitution and the debate about religion that might have transpired at that time, I often say that those debates, while they might have, on the surface, been about religion and the role of the church in public life, they are as much, if not more, about federalism.
And so I would say everything that the Constitution of the United States says about religion is really as much about federalism. So you take, for example, there’s reference to religion in Article VI, clause three of the Constitution, which prohibits religious tests. Now what’s the statement being made here when the Constitution prohibits religious tests? Is it making a general denunciation of religious tests? My answer is no. What it’s really doing is saying the federal government is not going to get in the business of writing religious tests, thereby displacing the existing religious test oaths in place at the state and local levels.
So, if you look at Article VI through that lens, you see it’s really as much about federalism as it is about the efficacy or the propriety of religious test oaths. I would say the same thing about the First Amendment, the language “Congress shall make no law respecting an establishment of religion” is as much about preserving the existing religious relationships at the state level as it is about disallowing the federal government from creating a national church that might displace those existing church-state relationships. So again, I think it’s a very helpful way of approaching what the Constitution has to say or not say about religion [is] through the lens of federalism.
Brown: Because it’s ultimately about federal power and what it will or will not do.
Dreisbach: Absolutely. And respecting the right of state and local governments to frame and shape what the relationships will be between the church and state, between the role that religion will play and the life of a given state.
The Wall of Separation Metaphor
Brown: Okay. So our question becomes, does this notion of a wall of separation arise from these earlier constitutional debates or something else? What does a giant wheel of cheese have to do with it?
Dreisbach: Okay. Well, you’re asking me to tie together my culinary interests and my political interests here. So, I think there’s a healthy debate going on in the early republic as to what exactly is the proper role of religion now, almost as much at the national level. We’d reserve the rights of the states to define and articulate proper church-state relations.
But increasingly, this is a debate that’s moving onto the national stage. And if you look at the context of the election of 1800, religion plays a really important part in that election. The Jeffersonians depicted the incumbent president John Adams as being a supporter of an establishment. He’s described almost as a monarchist, a supporter of all things English.
Now, the Adams followers are doing the exact opposite number on Jefferson. They’re depicting him as an infidel or, even worse, an atheist. Those are really serious terms to be throwing out at this time in American history and of course what gives that complaint about Jefferson, from the Adams perspective, some legs, [are] a number of things. One of which is Jefferson had been formerly the American minister to France and had formed close relationships with individuals who now had emerged as leaders of the French Revolution.
And in the 1790s, the French Revolution had turned very bitter, had turned very bloody and anti-Christian. There was a de-Christianizing movement in the French Revolution. And so if Adams and his followers in the election of 1800 could portray Jefferson as a supporter of the French Revolution, this was a very scary proposition, a very scary thought.
And so when Jefferson is elected president, given this really intense rhetoric of the election of 1800, there are eyewitness reports of housewives burying the family Bible in their gardens, burying the Bible in their garden. Why? Because of the rhetoric of the campaign had been that, if Jefferson’s elected, we’re going to see here in the United States what we are observing on the other side of the Atlantic in France in that de-Christianizing moment, where priests are being burned, where mobs are going into cathedrals and tearing down the crucifix and taking the chalice and tying it to the tail of a donkey — or an ass — to use all the power of language here.
They worry that’s what’s going to happen in America. And so there’s a profound polarization taking place in America in and around the election of 1800. And many of the most pious of Americans are very fearful of Jefferson and are very worried when Jefferson is elected. And so a lot of political rhetoric of this moment in a church-state context is playing off this New World of Jeffersonian America.
Now, New England overwhelmingly supported John Adams. But, interestingly, there was one pocket of support for Jefferson in New England, and that was out in the Berkshire Hills, Pittsfield, western Connecticut, among the Baptists who had settled out there. And one of the Baptist leaders in western Massachusetts was a minister by the name of John Leland.
Now John Leland, earlier in his life, he was originally from New England, but he had essentially become an itinerant minister missionary to Virginia, bringing the Baptist missionaries to Virginia. And before the election of 1800, he had moved back to New England, but while in Virginia, he had become an ardent supporter of this Madisonian-Jeffersonian vision of disestablishment as the way to promote a vibrant religious culture.
And so here is Leland on the sidelines. He’s seen the attacks on Jefferson, his friend, someone whose views he holds dear. And so when Jefferson was elected president, to celebrate Jefferson’s election, John Leland and his Baptist followers in Cheshire, Massachusetts got together on one July day and they collected all the milk from their cows, and they made a mammoth cheese and it was a mammoth cheese, right? I forget the details. It was 1,700 lbs. or something like that. [Correction: 1,235 lbs.] This is a huge cheese. And so they make this cheese in the late summer. It cures over the fall. And in a grand procession that’s reported daily in the newspapers, they bring this cheese from western Massachusetts down to Washington, DC and they enter Washington, DC in very late December of 1801.
Now, the reason why we talk about the cheese is because in some ways it encapsulates all kinds of metaphoric themes related to church and state. Leland, the Baptist minister, has made the cheese in support of Jefferson who he views as a champion of religious liberty.
Now, just to add coincidence to coincidence, this cheese has been curing now for many months without modern preservatives. Some people said it was ripe enough that the cheese could have walked into DC on its own. But, in any case, it arrives at the White House late December, probably January 1 of 1802, which is exactly the same day that Thomas Jefferson, now president of the United States, sits down in the executive mansion, we today call the White House, and he wrote a letter to another Baptist group in New England, the Danberry Baptists, in which he uses the phrase, “a wall of separation between church and state.”
Now we’re talking about two different Baptist groups here but we have this alignment on the same day, January 1, New Year’s day 1802, with the delivery of the cheese, a metaphor of celebrating Jefferson’s support of religious liberty, the same day that Jefferson writes the Danbury Baptists, in which he uses this metaphoric language of a wall of separation between church and state, but both the cheese and the wall metaphor are speaking to very similar, if not identical, themes and concerns and issues of the day.
Brown: And so there’s a very particular context that this idea of the wall of separation arises and it continues to be cited for hundreds of years. Since he said it, had a very deep influence on the way that jurisprudence was carried out in interpreting the Constitution. Didn’t it get read back into the Constitution? Is that —
Dreisbach: I think that’s right.
Brown: — how we can see it?
Dreisbach: Yes. So you mentioned this book I’ve written — I wrote it many years ago — called Thomas Jefferson and the Wall of Separation Between Church and State. And I sometimes describe that book as a biography of a metaphor. It tells the life story of this metaphor. And the modern version that we most frequently cite is the Jeffersonian use of the wall of separation metaphor. But I should add that the wall of separation has been used in a church-state context in the Western world, at least for as long as 500 years. The use of the metaphor so frequently cited in jurisprudence today is the Jeffersonian use of the wall of separation metaphor.
Now, when Jefferson wrote the letter, he sent it to this Baptist association in New England. It was reprinted in a few local newspapers at the time, 1802 or thereabouts, and then it falls out of use. It’s almost a forgotten document. It’s not until the first major collection of Jefferson’s papers was put together in the mid-19th century that the letter was reproduced.
And a few years later, in a Supreme Court case, Reynolds v. the United States, which is often described as one of the Mormon polygamy cases, the Supreme Court used, for the first time, Jefferson’s wall of separation. But I argue in my book that they’re really not interested in the wall of separation at this time. It’s a different part of that sentence that they’re interested in.
And so again, the metaphor then falls out of use. But in 1947, the Supreme Court is once again drawn into a church-state decision, a case called Everson v. Board of Education. Again, the year is 1947 and the court once again revives this use of Jefferson’s wall of separation, and they put it really at the very heart of their analysis in that case.
And so for the next 75 years or so, the wall of separation is going to be front and center in the Supreme Court’s analysis of what the First Amendment means. So if you look at the letter itself that Jefferson writes, he quotes the First Amendment. And then he puts a comma and says, thus building a wall of separation between church and state. So Jefferson himself is connecting his wall with the language of the First Amendment.
Now what I would suggest is Jefferson is laying out a political principle, maybe a constitutional principle of sorts. What really happens in 1947 is that the Supreme Court elevates this language of a wall of separation and enthrones it really as constitutional law. And it’s almost as if they don’t see a distinction between the wall of separation and the literal language of the First Amendment.
And so, again, over and over again, the following year, 1948, in a case called McCollum v. Board of Education, if I remember correctly, they cite the wall eight times in a single opinion as if this is the First Amendment. The wall metaphor and the First Amendment’s language become almost inseparable in the writing, if not the thinking, of the Supreme Court justices. And so it’s going to shape the next generation or two of jurisprudence on establishment clause thinking. And so it’s going to have an enormous, enormous influence on what the court says the First Amendment, the Constitution requires.
Brown: Really for 50 years. Here we have an instance where Jefferson wrote the Danbury letter on his own. It was private correspondence, and then wasn’t revealed until later, until his papers were collected. But it seems to me that it’s very different from the constitutional debates where you actually had deliberation over specific language. You had other people reading over your shoulder, checking drafts, making sure that language was precise.
And yet here we have just Jefferson speaking on his own. How does the difference between deliberation and expression of opinion separated off as its own thing, how do we think about the differences between what was deliberated earlier in resolving the text of the Constitution and Jefferson’s later opinions?
Dreisbach: Yes, I think you’re absolutely right to note the problems that arise when private conversations, maybe private letters, reflections that a politician makes in years of retirement, using that kind of thing to shape our understanding of a constitution or any law for that matter. I think it’s healthy in a democratic society that, if we’re going to add something to our body of law or to our constitution, it’d be subject to open debate, deliberation, ratification, that kind of thing.
Now, in fairness, I would note that Jefferson wrote this letter, and we can call it a private letter, but he was really writing for a much larger audience. Think of the age, think of the time. Presidents had very few ways to communicate with the American people, right? You couldn’t get on the evening news, television news. You didn’t have some of the ways that presidents today typically address the American people. And so writing letters to constituent groups was one of the key ways that presidents in those early years did send a larger message.
Brown: So it was a constituent letter, not like his correspondence with Madison.
Dreisbach: It was a letter with a constituency [group]. So the Danbury Baptists — I didn’t mention this earlier, but I should have — they had written him a letter back in October of 1801. And it had arrived in Washington in December of 1801. And so when he writes them, he’s responding to their letter. Now I sometimes describe the letter that the Danbury Baptists in Connecticut had written to Jefferson, I describe it as a fan letter because the Danbury Baptists, like John Leland, who I mentioned earlier, really were fans of Jefferson. The Baptists in New England viewed themselves as a political minority two times over. They were republicans in Federalist New England. And they are a very small minority in New England politically. But they’re also a religious minority because most of New England at this time is still dominated by the Congregationalist Church.
And so the Baptists, both in Danbury as well as up in Cheshire where John Leland was from, they viewed themselves as sort of a persecuted minority. And they’re writing to Jefferson a fan letter saying, we celebrate your embrace of religious liberty like you had done back in Virginia in writing the bill for establishing religious freedom and all those other kinds of things. And we hope you bring to the nation as president that same spirit and devotion and commitment to religious liberty. And so Jefferson is responding to this “fan letter” that he had received from the Danbury Baptists. But, again, he knows full well [his letter will reach a much larger audience than just the Danbury Baptists].
George Washington did the same thing. When George Washington wanted to speak to a larger audience he often used a letter to a constituent group. Because you know how it works. If you’re sitting up there in Danbury, Connecticut and you get a letter from the president of the United States, you’re going to run down to the local newspaper. It’s going to be published in the local newspaper, and the next town over is going to publish it in their newspaper. And so this letter that’s ostensibly written to a particular person or a constituent group is going to begin to be disseminated to a much larger audience.
And Jefferson has got some political problems that he wants to address. Now this takes us back to the election of 1800. You remember Adams and his followers had described Jefferson as an infidel and an atheist. And once he’s elected, the followers of Adams begin to sort of prod Jefferson, a little bit like poking the bear. They would think of a reason for Jefferson to issue a religious proclamation, and they would say to Jefferson, “issue a religious proclamation.”
And Jefferson would say no. And then the Federalists would come back and say, ah, there’s your proof that John Adams is an infidel and an atheist, because who but an infidel or an atheist would refuse to issue a religious proclamation, like a Thanksgiving day proclamation. After all, both George Washington and John Adams had issued religious proclamations. Why isn’t Thomas Jefferson? It must mean — it’s the proof — he’s an infidel or an atheist.
Now, Jefferson had a response. And he wants to give that response. This has become a very uncomfortable growing political controversy early in Thomas Jefferson’s presidency. And so he’s using this letter in a way to address this larger question of why he’s not, as Washington and Adams had done, issuing a religious proclamation. And what’s the explanation that he gives? In the Danbury letter, it’s federalism, right? He’s essentially saying — you’ve got to read a little bit between the lines — but what he’s essentially saying, the power to issue religious proclamations, as I read the Constitution, is left to your state and local [governments.]
I’m the president of the United States. I’m an executive. I execute the laws. I execute the laws that have been delegated to me. And as I read the Constitution, I don’t see anything in here that gives me the power to issue a Thanksgiving [day] or a fast day or a prayer day proclamation. So he’s using this letter really to address this growing controversy over why he’s refusing to issue a religious proclamation. And, again, I think the underlying theme is a theme of federalism. It’s not among his powers as president of the federal government of the United States.
Brown: Right. As you write in your book, “the Danbury letter cannot be fully understood, apart from the extraordinary political milieu in which Jefferson wrote it. The missive was deliberately crafted both to reassure pious constituents that Jefferson was a friend of religion and the rights of conscience, and to respond to a malignant and persistent federalist campaign of political defamation.”
So that seems to fully contextualize how he meant it. So then it behooves us to say, well, what was the part of the power of this idea? How did it have its staying power? And one aspect of this is the power of the metaphor itself. And maybe we can talk about that.
Dreisbach: I don’t want to let Jefferson off the hook. He’s working at several levels here. And so I think he wants to introduce the seeds of an idea that may lead to a larger secularization here. He’s working at several levels, I think.
Brown: Okay. Even granted all of this, the context surrounding the Danbury letter, there is this sense that the metaphor itself has a life of its own once he introduces it, and once it enters the political discourse later. Once it’s published and once it takes form in others’ hands.
The Power of the Metaphor
One passage in your book I found very striking as a way of getting at why it has a certain appeal to some, and you write:
The First Amendment’s laconic text imposes explicit restrictions on Congress only. A wall, by contrast, is a bilateral barrier, a structure of unambiguous demarcation that inhibits the movement of traffic from one side to the other. The separation principle interpreted strictly prescribes all admixtures of religion and politics, denies all government endorsement of and aid for institutional religion and promotes a religion that is strictly voluntary and essentially private, personal, and nonpolitical.
Is that what people did with it?
Dreisbach: I think so. Metaphors are powerful tools, right? They hold tremendous promise, but also tremendous perils. The power of the metaphor is it’s comparing two unlike things, and we hope to get a richer understanding of one of those things by comparing it with the attributes of the other.
The problem here with the wall of separation metaphor is that it introduces the dissimilarities in the comparison between the First Amendment and the wall that have over time overwhelmed the similarities, the insights to be gained from the comparison. And you’ve put your finger on one of those, which is this. The First Amendment, in its literal reading, is a restriction on Congress. You read the language earlier, “Congress shall make no law . . .” So whatever the First Amendment means, it begins with a restriction on Congress. We could say by extension on the federal government, perhaps, but certainly on Congress.
But if you replace the literal text of the First Amendment with a bilateral wall, it not only puts a restriction on Congress and government, but now it puts limitations and restrictions on whatever’s on the other side of the wall. In the metaphor, it’s church or religion, and that’s not a part of the First Amendment. The First Amendment does not restrict the church or religion; it’s a restriction on government. But if we replaced the First Amendment with the metaphor, it now really becomes a profound limitation on the ability of the sacred to inform the secular.
And it becomes a tool and instrument of a kind of secularization of public life. And I think that would’ve been very worrisome to the founding generation because, as we’ve already talked about, they believed that religion had a vital role, especially in a system of self-government, in nurturing the civic virtues that a people must have if self-government is going to succeed.
Jefferson’s Religion
Brown: And Jefferson did seem to have a more expansive notion of religious freedom in the sense that he was the author of the Virginia Statute on Religious Freedom, which was defined more broadly than other expressions at the time. Isn’t that correct?
Dreisbach: I think so. It’s a monumental piece of legislation in American history.
Brown: Yes. And which predated the Bill of Rights by a few years.
Dreisbach: He writes his draft of the bill for establishing religious freedom. This is part of Virginia’s revised code immediately after independence. He writes his draft in 1777 probably. He sends it off to the legislature in 1779, but it’s not truly enacted until after the war on January 16, 1786, which is why we celebrate January 16 every year as Religious Freedom Day.
Brown: Jefferson, in other places, expresses a more expansive notion of religious liberty to include Catholics, Jews, and Muslims. And there’s a famous quote to that effect I believe that was said much later than the Virginia statute on religious freedom. But in some ways you can see that he still believes in a robust role for religion. But he’s not tilting his hand on which one should have any kind of dominance in civic life. It’s a way of protecting that role in civic life in some ways.
Dreisbach: I would say yes. Jefferson has, I think, a much richer, robust commitment to religious liberty than maybe many others of his generation. At the same time, I think he also, out of his own personal commitment, views religion with much more skepticism, especially traditional religion in his Virginia, with much more skepticism. And maybe to some extent saw evangelical Christianity as perhaps a dangerous thing in the sense that he saw it as perhaps getting in the way of science.
So, he can believe two things at the same time here: a very healthy view of religious liberty. But he also, I think in the long term, believes that traditional Christianity is going to wane over time in influence, and he thinks that’s probably a good thing.
Brown: And he would go on to take scissors to the New Testament to create abridgements to the moral teachings of Jesus. So he is looking at a moral framework, but then specifically excluding any supernatural elements like miracles from any kind of edification that he’s taking from the text, its moral improvement, its moral precepts.
Dreisbach: Yes, I think that’s right. Jefferson many times describes Jesus of Nazareth as the greatest moral teacher there ever was. Now he’s highly skeptical of the claims of the gospel, which he thinks are glosses added by Jesus’ followers, of [Jesus] having done miracles and the like. But that doesn’t diminish his view on the importance of Jesus as an ethical teacher, in fact, teaching the very kinds of ethics essential for a self-government to survive.
It’s not exactly true that he snips out all of the miracles. Scholars do a little bit of twisting to try to explain why he might have left a few in there. But I think the larger point is, yes, he was focused on Jesus as an ethical teacher, not so much as the performer of miracles and the founder of a new religion. So he wants to distinguish himself from traditional Christianity in that way.
And, of course, he’s very happy to point out the profound corruptions that he saw within the church or within religion over the course of the last 2,000 years. To him that is the way of the world. It’s the way in which religion operates. It’s by aggrandizing the power of those who are in positions of authority within the church or religious leadership.
Brown: Well, inconsistency may be easier to see in retrospect, right? Because Jefferson even went on to attend, you know, Sunday services in the House of Representatives building, which was used by different denominations, or for civic functions when Congress wasn’t in session. And also in retirement he was said to have attended services at the Albemarle Courthouse. So there’s, you know, they’re using public buildings for religious purposes.
Dreisbach: One way of thinking about this is that there are Americans who believe that religion is this powerful thing that transforms the soul. It transforms humankind and, thereby genuinely transforming the soul, it’s going to make us better citizens. Someone like a Jefferson, I think, appreciates that from a strictly utilitarian standpoint. He says, this is good if it changes uncouth, uneducated people out there on the frontier into being well-behaved citizens.
So while he himself may not have embraced the doctrines of the faith so much, he’s very happy to see the influence of religion, which others might have viewed as genuine transformations of the soul. But he’s happy to embrace it, but again, maybe for strictly utilitarian purposes in promoting social order and discipline.
The Wall Today
Brown: Now you published your book in 2002, and that was the same year that Philip Hamburger wrote his book on the —
Dreisbach: Separation of Church and State.
Brown: — also on the same concept. What do we see in the past 25 years since those books were published? Where do things stand now specifically with the wall of separation?
Dreisbach: Well, just an interesting little history: In the immediate aftermath of that 1947 case, Everson v. Board of Education, there were a couple of what I would call revisionist histories — that is to say, revising the court’s version of history. The Everson case read like a short course in history and they purported to rest their analysis of the First Amendment in history. And so there were a couple, I think, very powerful critiques that came out in the immediate aftermath of the Everson case. Things kind of died down.
We hit the school prayer cases 1962, 1963. Again, there are a couple pretty effective critiques of the court’s use of history and the wall of separation in those cases. Things kind of die down a little bit. And then we get to the end of the century. And again, the wall of separation metaphor continues to have enormous sway with at least many of the Supreme Court justices.
In the late 20th century, there were a couple books that began to seriously challenge the conventional interpretation and understanding of Jefferson’s metaphor and the Supreme Court’s use of that metaphor. And that brings us up to 2002. I published my book. I didn’t really know Philip Hamburger at the time. [He is the Maurice & Hilda Friedman Professor of Law at Columbia Law School and the author of Separation of Church and State, published by Harvard University Press.] I think we’d met each other at a time after both of us had submitted our manuscripts.
And our books have, I think, a somewhat different focus. Mine, as I said earlier, is the biography of a metaphor. I’m telling very narrowly the story of the wall of separation metaphor. He writes a book that overlaps with that, but the scope of his book is much more sweeping. It’s a much grander project in that he’s looking at this concept or principle of separation of church and state in the American experience, bringing it right up to the end of the 20th century. Now he takes us back to some antecedents that take us back to Europe and European sources. But his book has certainly got a much broader sweep in what it covers.
Now, I think that his book, perhaps mine to some extent, and others, has [had] an effect on the federal courts. And you can just chart this. So you can look at citations to the wall of separation metaphor over the last quarter century. And interestingly, there’s a rather sharp decline in the number of times, certainly at the Supreme Court level — I think you’re going find the same thing at lower federal court level — the number of references, allusions to Jefferson’s wall of separation. Now, I would like to think it’s because the justices are being introduced to a much richer understanding of the history.
There was something almost cartoonish by this appeal to a wall of separation back in 1947. But we’ve now, I think, had a number of years with a much deeper, richer, thorough examination of the metaphor, how Jefferson meant it, how Jefferson used it, how others have used it. And so I think the justices, by and large, have pulled back from their frequent references to the metaphor.
John Paul Stevens in the early 20th century made a couple references to the wall. Sotomayor, in a case about two or three years ago, in a dissent began her opinion with a reference to the wall [Carson v. Makin, 2022]. But they’re few and far between. And now the references to the wall metaphor are, I think, more commonly in dissenting opinions rather than majority opinions. And so I think we might be in an age in which the metaphor has fallen out of favor to some degree in federal jurisprudence. Whether it makes a revival or not, I can’t say, but I think it’s somewhat in decline in the first quarter century now of the 21st century.
Brown: In 2005, [Supreme Court] Justices [Stephen] Breyer and [William] Rehnquist came to opposite positions about whether it was appropriate to display the 10 Commandments. Are you familiar with that?
Dreisbach: A little bit.
Brown: How did that happen?
Dreisbach: Well, I think this carries us back to the question of what do we mean by separation of church and state? We use the phrase all the time. I think probably most Americans would say, I support a separation of church and state. But if you take it the next step and say, well, what does that mean to you, you’re going to get very different interpretations. So, on one end, you’re going to have someone like a Rehnquist who says, look, I don’t support and I don’t think the Constitution allows for an institutional relationship between the church and state where the state is supporting the church. But I think there’s a lot of room here for religion to play a very vital, maybe informal role in informing public ethics, informing sort of cultural attitudes and the like.
Whereas on the other extreme, we have those who take the same language, separation of church and state, and they say this disallows any reference or mention of faith or God or religion in the public square. Every four years there are lawsuits filed to try to stop the use of prayers at inauguration as being a violation of separation of church and state. So, we use the same language, but we often mean very different things. And so I think that’s probably typified by this sort of contrasting uses or appeals made by the justices you’ve just mentioned.
Brown: Excellent. Well, much more could be said on this topic, but I recommend to our listeners that anyone who’s interested to turn to your book, Thomas Jefferson and the Wall of Separation Between Church and State as a trustworthy guide to the story of this metaphor in American history.
Stay Tuned for Part Two . . .
That concludes part one of my conversation with Daniel Dreisbach. In the second half of our conversation, we talk about Jewish Roots of American Liberty, a new book that he contributed to, as well as his related earlier work, Reading the Bible with the Founding Fathers. We try to make sense of the political ideas of the founders as shaped by concepts they found in the Hebrew Bible. And we will conclude with a brief discussion about the state of history publishing and the challenges of teaching at the university. Stay tuned for part two, which will drop next week.
