Cramer misses on Separation of Church & State:

Clayton Cramer has a post where he suggests that “it is high time that ‘separation of church and state’ be given a proper (and secular) burial.” He goes into much historical detail. Yet his analysis is clearly flawed because he leaves much out.

He begins by noting that the phrase “separation of church and state” is not found in the Constitution. I don’t think anyone ever claimed that it is in the text. But that doesn’t matter: The relevant question is, how does the Constitution deal with the proper relationship between government and religion? The answer is both religion clauses of the First Amendment and Article VI have the effect of “separating Church and State”; at least, this was what was intended by our Framers at the federal level.

Cramer correctly notes that the phrase “separation of Church and State” was found in a letter that Jefferson wrote to the Danbury Baptists. But he implies that this is the only time such phrase was ever used by our Framers to describe government’s proper relation to religion. That is incorrect. This phrase or very similar ones were used often by our Framers to describe religion’s stance in a liberal state. For instance, James Madison, who had more to do with writing the First Amendment than Jefferson, once famously said “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together;” [James Madison, Letter to Edward Livingston, July 10, 1822, The Writings of James Madison, Gaillard Hunt].

(This link has other quotes from Madison where he uses the exact or very similar phrase, “separation of Church & State.”)

Cramer then, in great detail, notes many (the majority) states deeply integrated religion and government at the time of the framing of the Constitution. I agree that the religion clauses of the Constitution, as originally written, only applied to the Federal government. Moreover, I agree that “even Jefferson recognized that the First Amendment was a limitation only on the federal government.”

But the analysis doesn’t end there. There is virtually no discussion of the 14th Amendment or natural rights in Cramer’s post. Cramer recognizes that Jefferson thought the states ought to separate Church & State (well at least disestablish their Churches). The reason why Jefferson thought this was because he (and Madison and others) believed separation of government and religion necessary in order to secure natural rights—rights that all governments, federal, state, local, (and international) are supposed to respect. These rights are, according to the Declaration of Independence, the “ends” of government—not just the federal government, but government in general. As originally understood, the US Constitution was implemented to secure the natural rights of the citizenry, but (for the most part) only against federal violations of them. It was hoped that states, on their own, would respect the natural rights in most areas. Slavery is the perfect example. That practice clearly violated the natural rights found in the Declaration. Many of our framers, like Jefferson—even thought he/they were slaveholders—hoped to see the natural rights of slaves eventually secured. But they did not envision the eventual outcome of the Civil War. Rather, because the Federal government had no recognized power to stop slavery, states could practice it, but it was hoped that the states would eventually abolish the institution because natural rights demanded that they so do. The bottom line is this: Just because the power of states to do X was preserved doesn’t mean that the framers approved of X or that X is consistent with our founding principles.

And with the passage of the 14th Amendment, the balance of power between the states and the federal government underwent a major shift. Now, with the "privileges or immunities" clause of the 14th, the federal government had the power to make the states respect the natural rights of their citizens. Indeed, Everson, the case that first applied the Establishment Clause to states could only do so because of the incorporation of such rights through the 14th Amendment (but through the wrong clause).

The question then becomes was the Establishment Clause properly incorporated? This can get quite complicated. If one doesn’t believe in the doctrine of incorporation, then the answer is no. Even if one does, there are still some prominent scholars—Randy Barnett, Akhil Amar, and others—who believe that while the Free Exercise Clause and the Ban on Religious Tests are properly incorporated, that the Establishment Clause is not. Why? Because “rights”—both natural and positive—are what is incorporated. Unless a particular provision of the Bill of Rights can be tied to a right, then it ought not be incorporated.

The rights that the religion clauses relate to are the rights of conscience—equality and liberty of conscience—rights that our framers absolutely were first and foremost concerned with. This quote by Jefferson perfectly encapsulates such concern: "But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to God."

So the question of incorporation turns on whether a state with an establishment, a “Christian republic” if you will, can effectively enforce the equal rights of conscience. Personally, I don’t think that such a republic run by the likes of Roy Moore could do so. And neither did Jefferson and Madison. Both thought that only a state that separates Church & States could effectively guarantee such rights.

And here is where we get to the most serious flaw in Cramer’s analysis. He claims that in Everson, the Supreme Court relied only on Jefferson’s letter to the Danbury Baptists, which, according to Cramer,

had only addressed the question of whether states should give legal preference to one church, and [the Court misinterpreted this letter by arguing] that the First Amendment should be understood as meaning no law could aid any religion—a position that Jefferson did not take in that letter…. While both Jefferson and Madison (principal author of the Bill of Rights) had certainly played a role in disestablishing the Anglican Church in Virginia, the rest of the First Congress—who also voted on the First Amendment—did not share Jefferson and Madison’s views on disestablishing churches at the state level. There is also no evidence that Jefferson and Madison would have agreed with this claim that "no law could aid any religion"—and the actions of both Jefferson and Madison Administrations, as we have previously seen, suggest otherwise.

The problem is both Jefferson and Madison indeed argued that “no law could aid any religion.” Cramer claims that the Everson decision did not give any authority for its claim that the First Amendment required this:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. [Everson v. Board Of Education Of Ewing Tp., 330 U.S. 1, 16, 17 (1947).]

But the fact of the matter is, the Court relied on extensive historical evidence beyond Jefferson’s letter to the Danbury Baptists in coming to this conclusion. In fact that passage perfectly sums up both Jefferson’s Virginia Statute on Religion Freedom and Madison’s Memorial and Remonstrance, which are the main documents, in addition to Jefferson’s letter to the Baptists, that the Court relied upon in coming to its conclusion. What is special about both of these documents is that they detail Jefferson’s and Madison’s ideal on how religion and government should be situated against one another. And the VA Statute (which Madison fought tooth and nail to pass) makes it clear that this is not just what is appropriate for VA, “that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Now, the statute doesn’t use the words, “separation of Church and State.” But that’s what the statute clearly does. It goes well beyond just disestablishing the Anglican Church in VA. On the question of government aid to religion, that statute states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor….”

Regarding government endorsement of a particular religious point of view, the statute states, “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own….”

Finally the statute says, “Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.”

It’s important to note that when drafting the US Constitution and the Bill of Rights, the Framers could have followed the model of any one of those states that clearly integrated Church & State. They could have required that one must be a believer in the Christian Religion in order to serve in public office, that the Federal government has the power to “promote religion, or Christianity” (keep in mind that the Federal government is one of explicitly limited enumerated powers—if the power is not on the list, then the Federal government doesn’t have it), etc., etc. No, they completely left any mention of “God” out of the Constitution, they didn’t empower religion, and when they did speak of religion, they did so only in the negative sense. In other words, they seemed to follow the VA model of disestablishment, not the model of the other states.

And the fact that our framers used the word “religion” generically and not “Christianity” in particular does have meaning. Cramer cites Chief Justice Story’s claim that “The real object of the [First] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” [Joseph Story, Commentaries on the Constitution of the United States… (Boston: Hilliard, Gray And Company, 1833), §§ 1865, 1871. So why didn’t they use the term “Christianity” then? Jefferson explains the significance of the absence of Christian language in the VA Statute:

Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.

Indeed, there was much furor that the provision of the Constitution stating that “no religious tests shall ever be required as a Qualification to any Office or public Trust under the United States” amounted to, in the words of a North Carolina minister, “an invitation for Jews and pagans of every kind to come among us.” “At the Massachusetts convention, one speaker warned that unless the chief executive was require to take a religious oath, “a Turk, a Jew, a Roman Catholic, and what is worse than all, a Universalist, may be President of the United States.” See Susan Jacoby, Freethinkers, a History of Revolutionary Secularism, at pp. 25-27. If the framers wanted the term “religion” to mean only “Protestant Christianity” this could have been written into the Constitution, but it wasn’t. And folks who wanted only Protestant Christianity to be protected knew what that meant.

Now we can quibble with Jefferson’s and Madison’s views on religion as expressed in their respective VA documents. We can ask does forcing someone to pay tax $ to religion really violate a right on the grounds that government can’t force us to pay with opinions that we disagree with? (Government seems to do quite a bit of that these days). But to say that the Everson court only relied of Jefferson’s letter to the Danbury Baptists while ignoring their extensive reliance on the VA Statute and the Memorial & Remonstrance is just flat out wrong.

My own personal opinion is that separation of Church & State—a secular government that takes no stance on religion—is necessary to support the equal rights of conscience for all religions. It also comports with the Enlightenment notion that religion is a matter of “opinion” (the VA Statute refers to religion exclusively as "opinion") that government has no jurisdiction over (Madison's Mem/Rem states that "Religion be not within the cognizance of Civil Government"). Yet, the ends of government as described in the Declaration are a matter of "knowledge," not "opinion"—that is these principles are not negotiable. Madison & Jefferson also seemed to believe this too. In fact, Madison originally wanted the federal government to guarantee these rights against the states. His first draft of the First Amendment read:

The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.

But this language was voted down because other framers considered it to be an overreach of federal power. So the compromise was this: Church & State would be separated at the federal level, and the states would be free to handle it their own way—with the hope that they would follow the federal model of separation, which is what many of them did. There was a wave of disestablishment that followed the passage of the Bill of Rights. But the bottom line is that the rights of conscience are natural rights. And if we believe that states must respect natural rights and the federal government has the power to enforce such rights, then separation of church & state is proper if necessary to secure the rights of conscience.

One last thing, Cramer points to examples of how the Jefferson and the Madison Presidencies ignored the separation of Church & State by using the Federal government's facilities to hold Christian Church services. This does not refute separation of Church & State as an originalist ideal because our framers were perfectly capable of raising an ideal one day, and then violating it the next. The question begged is whether that conduct truly was consistent with what Madison and Jefferson wrote in their VA documents, with the natural rights of conscience, and thus a proper understanding of the Constitution's religion clauses.