Bench Memos

NRO’s home for judicial news and analysis.

Establishment Clause vs. “Wall of Separation”


The New York Times’s predictably gaseous editorial on the Ten Commandments cases ends with the observation: “As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.”

Let’s set aside the NY Times’s implicit appeal to the same originalist principles (i.e., the Constitution should be construed consistent with its original meaning) that it usually decries. Does the NY Times seriously contend that the clause “Congress shall make no law respecting an establishment of religion” was the Framers’ way of embodying “the idea of a clear wall of separation between church and state”? Does it think its readers are so dimwitted or brainwashed to believe this?

The phrase “wall of separation between church and state” derives, of course, not from the Constitution but from President Jefferson’s 1802 letter to the Danbury Baptist Association. As Professor Philip Hamburger of the University of Chicago Law School explains in his magisterial work Separation of Church and State (Harvard University Press 2002)—buy it and read it if you haven’t already done so—”the idea of separation of church and state was very different from the religious liberty desired by the religious dissenters whose demands shaped the First Amendment” (p. 9), and “the constitutional authority for separation is without historical foundation” (p. 481).

Indeed, “the idea of separation did not become popular until the mid-nineteenth century,” when nativist “opponents of Catholicism” combined with “anti-Christian ’secularists’” to demand a federal constitutional amendment guaranteeing separation. “Only when their movement for an amendment failed did they abandon their argument that the U.S. Constitution had not already guaranteed separation.” (p. 10)

Professor Hamburger shows in exhaustive detail that “modern suppositions about the wisdom and influence of Jefferson’s words regarding separation have developed largely as a twentieth-century myth—an account that has become popular precisely because it has seemed to provide constitutional authority for separation.”

There’s much, much more in this outstanding book that ought to reshape the Court’s–and, perhaps, even the New York Times’–understanding of the Establishment Clause.


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