The phrase ‘separation of church and state’ is nowhere in the Constitution, but rather was lifted from a letter of assurance to the Danbury Connecticut Baptists Association by President Thomas Jefferson. It is upon that phrase in that letter that aggressive antiestablishment cultists such as the American Civil Liberties Union (ACLU), the Freedom from Religion Foundation (FRF) and militant atheists base their extreme policies. There is a problem with it.
While certainly among the most brilliant, and probably the most libertarian of the Founders, Thomas Jefferson had no hand in writing the Constitution, being engaged in Paris as ambassador to France at the time of the Constitutional Convention in Philadelphia. There are reports that he was very upset with it when he returned and read it.
The sessions were secret, so the only way he could have had knowledge of the thoughts of the delegates was through the notes of the official secretary, William Jackson, and those of the delegates who also kept notes, but also possibly through the recollection of some of the delegates, especially from the Virginia delegation, whom he certainly may have known. So can we really say that Jefferson’s statement reflects the intent of Founders to the letter? I don’t think so.
I have read numerous discussions on the entire church/state issue, including the references to the Barbary Treaty signed on Nov. 4, 1796 by John Adams, after being passed unanimously by the Fifth Congress. It is invoked regularly by ACLU, etc. This is the relevant Article 11: “As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen, and as the said States never have entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”
Many of the members of that Fifth Congress and Adams himself had attended the Constitutional Convention, strengthening their argument. But there’s a problem with this also.
The Fifth Congress and Adams were the very same Congress and president who had passed the Alien and Sedition Acts just five months earlier, in June. That fact raises very serious questions about their judgment. If you argue the treaty is a constitutionally accurate description of the religious orientation of the United States, you must accept the argument that those same people must have felt that the Alien and Sedition Acts were constitutionally sound. They weren’t sound, but you cannot accept one argument and not the other. The people who voted for them were identical. ACLU, especially, would rail at those laws just as it did over the Patriot Act. No libertarian can support those laws, so this Barbary treaty becomes suspect.
But it gets worse for the antiestablishment cultists who cite court decisions on constitutionality, such as a member of Freedom From Religion did recently on Tucker Carlson Tonight, mentioning all the court decisions in FRF’s favor. However, Jefferson was far more prolific and emphatic in his questioning of the validity of courts ruling on the constitutionality of laws. Here are two of his quotations:
The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution, which has given that power to them more than to the Executive or Legislative branches.
I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public & denounced as not law.
A simple web search will lead anyone to many more. If anyone cites Jefferson as a source for their version of anti-establishmentism, it’s inconsistent to rely on the courts, as they so often do, when he so obviously had a very dim view of constitutional review. Again, they cannot have it both ways.
I agree with Jefferson. There is no empowerment of the courts to rule on the constitutionality of any law. That is a power that was insisted upon by John Jay, the first Chief Justice of the Supreme Court. President George Washington and the Congress acquiesced. It was an unfortunate precedent and precedents are extremely important in government.
It was increased exponentially by the John Marshall Court in the Marbury v. Madison that Jefferson found so noxious. Marshall is regarded as a ‘great jurist.’ He was great in the same way Franklin D. Roosevelt and Lyndon B. Johnson were great. As did Marshall with the judiciary, they vastly increased the power of the federal government, especially the executive, far beyond constitutional limits. Evidently, trampling on the Constitution, at the expense of the states and the people, is a sign of greatness.
The Marbury v. Madison case is especially galling. Marshall wrote the decision even though he was involved in the case. That was a major conflict of interest and he should have withdrawn from it. Today, it would result in impeachment and removal from the bench, not to mention disbarment.
As far as the power of the courts, there can be no doubt that it is unseemly for any branch of government or any agency to decide its own power, yet that is precisely what the courts have done. Every believer in our checks and balances system should reject that. So what is the proper interpretation of the non-establishment clause? I have my own opinion, but one thing for certain, it should not be the exclusive province of the courts.
Beaman is an osteopathic physician in Jacksonville.