Monday, August 5, 2013

Steven Novella on the "separation of church and state"

Steven Novella ventures into Constitutional law:

A comment on my recent post about Backdoor Creationism calls into question the premise that the US Constitution demands separation of church and state, and therefore religious beliefs cannot be taught in public schools. The comment reads:

The first amendment states that the federal government can neither (sic) or prohibit the exercise of religion. “separation of church and state” is just a propaganda term used by some to stave off religious nuts who use undue social pressures or indoctrination to push their beliefs to others. 
Here’s a section of the first amendment. 
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” 
And here’s the definition of the word “respecting” from a dictionary dated 5 years after the adoption of the Bill of Rights. 
RESPECT’ING, ppr. Regarding; having regard to ; relating to. 
A little bit of history is in order. The term “separation of church and state” is not a propaganda term. It is a quote from Thomas Jefferson (who, I understand, had some familiarity with the Constitution) from his letter to the Danbury Baptists.

A little more history is in order.

1) Jefferson did not participate in the Constitutional Convention.

2) Jefferson's personal letters are not a part of the Constitution.

3) Jefferson's view, and the Founders' view, was that the federal government (not the state governments) are prohibited from interfering in either private or public religious practices of the states or of the people. No distinction was made between private and public religious expression. The consensus view was that the federal government was prohibited from interfering in religious exercise in any aspect of American life. It was also the consensus view that the federal government was free to participate in religious exercise-- Congress held official prayers and hired chaplins, presidents issued religious public proclamations, federal monuments and documents were slathered with God-talk. Federal establishment of religion was prohibited.  Free exercise of religion was everywhere permitted, under federal jurisdiction, including free exercise of religion by government officials on government time and property.

The notion that a public schoolteacher is banned from leading students in voluntary prayer would have left the Founders gasping. Banning prayer is precisely what the First Amendment prevents the federal government from doing

The explicit and acted free exercise of religion and the prohibition of federal censorship of religious exercise required by the Constitution is the opposite of what "wall of separation" censors are  demanding today. Censors are demanding federal intervention, not federal non-interference, in myriad public religious practices. That is the opposite of what the Founders meant-- by consensus, including Jefferson.

The purpose of the Establishment and Free Exercise clauses was to take the federal government out of the religion-regulation business.

3) Jefferson, in the Declaration of Independence, explicitly attributes our rights to God.

4) You can't erect an absolute wall of separation between church and state if rights are God-given. You can have a wall of separation between church and state, or you can have God-given rights. You can't have both.

So, one may ask, how did "separation of church and state" become a part of American jurisprudence, given that it originated in the personal letter of a man who had nothing to do with the Constitution and who believed that our rights were God-given?

Actually, "separation of church and state" had noting at all to do with American jurisprudence until 1870 (in the Supreme Court's Reynolds decision on Mormon polygamy), and there it was used only tangentially.

It remained absent from American law until it was used by Justice Hugo Black in the Everson decision in 1947, which addressed the use of public money to transport children to Catholic schools.

So how could a throw-away phrase written in a private letter by a man who had nothing to do with the Constitution become Constitutional law?

Well, "separation of church and state" was in fact a very popular phrase for several centuries, but not in law. It was a ubiquitous mantra among nativists and bigots. "Separation of church and state" was the desiderata of Catholic-haters beginning just before the Civil War, when Irish Catholic immigration became significant. It was incorporated in the Ku Klux Klan initiation oath.

I repeat: For a century and a half after the ratification of the Constitution, "separation of church and state" had essentially nothing to do with American law, where it was ignored. It was a prime theme of anti-Catholic bigotry, incorporated in the initiation oath of the Ku Klux Klan.

In fact, the insertion of "separation" into Constitutional law took place via the Klan, or more precisely, via a son of the Klan.

Justice Hugo Black, who had been the chief of KKK recruitment in Alabama in the 1920's and who had administered the Klan "separation of church and state" oath to new Alabama klansmen, was later appointed to the Supreme Court by FDR.

It's worth noting how Justice Black first achieved political notoriety. Black defended a man who shot an unarmed Catholic priest to death for marrying his daughter to a Puerto Rican. Black, a young attorney, provided his services to the murderer of the priest for free, and was catapulted to fame in Alabama when the man was acquitted by reason of temporary emotional stress-- i.e. the priest was Catholic and the son-in-law was Puerto Rican. The facts were not at issue-- the man shot the priest in public while the priest was sitting on the porch of his rectory at St. Paul’s Church in Birmingham, Alabama.

Black, freshly victorious and immensely popular, joined the Klan, and used the acquittal to begin his political career. He rose rapidly through the ranks of the Klan and the Democrat party (I repeat myself), and was elected to the U.S. Senate after barnstorming Alabama in 1926 delivering anti-Catholic "separation of church and state" speeches to Klaverns across the state. Black was one of FDR's most loyal allies in the Senate, and based on his undeniable Democrat qualifications (fealty and Klan membership), was appointed by FDR to the Supreme Court in 1937.

In 1947, Justice Black wrote the Everson opinion, inserting his Klavern stump speech on "separation of church and state" into Constitutional law.

Black wrote:
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'"
Black failed to note that "separation of church and state" was first used publicly in America not by Thomas Jefferson but by Roger Williams In Rhode Island in 1644, and was widely discussed prior to ratification of the Constitution in 1789 (most prominently by Madison). Despite extensive public discussion of "separation of church and state" and its implications, or more accurately because of the discussion and its implications, "separation of church and state" was not mentioned even once in the Congressional record from June 7 to September 25 during the Founders' recorded official debate on the First Amendment in 1789.

"Separation" was a well-known and vigorously debated concept for 150 years prior to the Constitutional Convention, and was discredited. The separation phrase was debated vigorously and extensively before the Constitutional convention, and "separators" lost the debate so decisively that the phrase wasn't even mentioned in the Convention, let alone in the Constitution.

I repeat: the salient fact about "separation of church and state" is that the Framers of the Constitution knew of it and considered it unworthy even of formal discussion, let alone inclusion in the Bill of Rights.

"Separation of church and state" is nowhere in the Constitution, and was nowhere in Constitutional law until Black scraped up his old KKK stump speech in Everson in 1947.

Note to Dr. Novella: there's a bit more to "separation of church and state" than Jefferson's letter.


  1. Adm. G Boggs, Glenbeckistan NavyAugust 5, 2013 at 7:44 AM

    Novella's "argument" is simply the typical Proglodyte "change the subject" tactic: "Stop looking at the Constitution and look at this letter!"

    However, Black's application of 14th Amendment incorporation doctrine in Torcaso v. Watkins is another case that is often overlooked in this debate. The Left loves the 14th Amendment, except when they hate it... as in McDonald V. Chicago. :-)

    They's Amendments what they likes, and Amendments what they don't likes.

  2. Jefferson, in the Declaration of Independence, explicitly attributes our rights to God.

    Bullshit. "Creator" and "God" are not synonyms, no matter how much you wish them to be so.

    For a century and a half after the ratification of the Constitution, "separation of church and state" had essentially nothing to do with American law, where it was ignored.

    Bullshit. Read the Treaty of Tripoli. Madison wrote about it extensively. So did Tyler. Reynolds v. United States used the phrase in 1878. Your pretend version of history is flatly wrong.

    1. Adm. G Boggs, Glenbeckistan NavyAugust 5, 2013 at 12:48 PM

      Nobody: " "Creator" and "God" are not synonyms..."

      Oh, I see. They meant your Mom and Dad! How sweet.

    2. Anonymouse:

      [Bullshit. "Creator" and "God" are not synonyms, no matter how much you wish them to be so.]

      So Creationism is not a reference to God?

      [Bullshit. Read the Treaty of Tripoli. Madison wrote about it extensively. So did Tyler. Reynolds v. United States used the phrase in 1878. Your pretend version of history is flatly wrong.]

      We were discussing the role of the phrase "separation of church and state" in Constitutional law, as I recall. The Treaty of Tripoli makes no reference to it, and the only place the phrase appears in US law is a brief mention in Reynolds in 1878. Until Everson.

      "Separation of church and state" got a lot of use as a nativist mantra, and was immensely popular with the KKK for a century. The hooded fellows managed to get one of their own on the Supreme Court, where he inserted that part of the KKK initiation oath into Constitutional law.

      Facts are facts.

  3. "So, one may ask, how did "separation of church and state" become a part of American jurisprudence, given that it originated in the personal letter of a man who had nothing to do with the Constitution ..."

    Actually, the reptile (*) did have *something* to do with the Constitution ... he opposed both its drafting and its ratification.

    (*) Jefferson was a cowardly back-stabber, a conniver-in-the-shadows.

  4. 1. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who mistakenly supposed it was there and, upon learning of their error, reckon they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

  5. 2. To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some, like Novella, try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Hardly. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is simply wrong.

    The further notion that the Supreme Court's recognition of the constitutional separation of church and state in Everson is all Justice Black's doing as part of some KKK anti-Catholic conspiracy would be laughable if it weren't contemptible bigotry. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.

    Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution--without the First Amendment--to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

  6. I had posted a link to Mr Egnor's piece on my blog ... and this leftist-and-atheist troll, Doug Indeap, posted the very same copied-and-pasted "comments" there.