“the Wall Of Separation”

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THE SUPREME COURT has been busy of late scrutinizing the “wall of separation,” a figure of speech attributed to Thomas Jefferson. It is not like the ugly Berlin Wall, built of concrete blocks and topped with broken glass and barbed wire. Rather it is more like a double-mirrored screen. Persons standing on either side discover whatever preconceptions about the First Amendment they may have brought with them.

And so it was in the Supreme Court decision of March 5, 1984, on Lynch v. Donnelly . Standing on one side of the mirrored screen, four men and one woman on the High Court found that the Establishment Clause of the First Amendment—the clause that prohibits Congress from making any law establishing a religion—did not prohibit the city of Pawtucket, Rhode Island, from including a crèche, or nativity scene, in its annual Christmas display. Speaking for the majority, Chief Justice Warren Burger, in overruling the lower court, argued that the crèche, “like a painting, is passive.… To forbid the use of this one passive symbol… would be a stilted overreaction contrary to our history and to our holdings.” The four dissenters looked at the reverse side of the mirror and, with Justice William Brennan as their spokesman, found that Pawtucket had taken “an impermissible step toward the establishment of religion.”

The close division on this case by the High Court reflects sharply divided nationwide opinion about the range and limits of the First Amendment, a confusion to which courts in the past have signally contributed in defining the permissible parameters of governmental intrusion in matters of private conscience. Courts have a penchant for probing history to discover the intention of the framers of legislation and amendments. Regrettably they generally find what they are looking for, and their explorations into the past seldom contribute to its enlightenment.

 

SUPPOSE WE ourselves do the probing. Just what does the First Amendment say, what did its author think it said, and finally, how has this very first of the Bill of Rights been faring of late?

The First Amendment, like the rest of the Bill of Rights, was adopted in response to widespread demand on the part of the state conventions that ratified the federal Constitution. These conventions sought to protect civil liberties from the overarching power of a Leviathan state and to make certain substantive changes in the Great Charter as well. The state conventions proposed more than two hundred amendments. James Madison headed a committee delegated by Congress to come up with an acceptable package. He whittled the total down to fourteen (eliminating all that involved substantive changes). After considerable debate Congress narrowed the list still further to twelve. Of these first twelve amendments, two failed to be ratified by the states. The remaining ten (the Bill of Rights) became a part of the Constitution on December 15, 1791.

The relevant portion of the First Amendment, which, with some alterations by others, was Madison’s handiwork, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Note that the amendment restricts Congress , not the states, because, at the time the Bill of Rights was ratified, at least two states, Massachusetts and Connecticut, already had established religions. In other states test oaths barred persons of some religious denominations from voting or holding state office. In a sweeping constitutional revolution initiated in the 1940s by the Supreme Court, the Fourteenth Amendment was construed, some seventy years after it was passed, to extend this prohibition to the states as well as to Congress.

SINCE THE 1940s the Supreme Court has valiantly upheld the prohibition against the establishment of religion while chipping away at its foundations. In taking such opposing positions, the justices have sought to read James Madison’s mind. We do know that young Madison had found the persecution of religious dissenters in his area of Virginia abhorrent, “a diabolical, hell-conceived principle. “He shared with George Mason and Edmund Randolph in the drafting of Virginia’s Declaration of Rights, especially the guarantee of “free exercise of religion.” He joined with Thomas Jefferson in moving toward the disestablishment of the Anglican church in Virginia. In the 178Os Madison assumed the principal role in mounting a campaign against Patrick Henry and other prominent advocates of a bill that would assess everyone to pay a tax to the Christian church of the taxpayer’s choice. To propagandize his opposition, he wrote a private paper, later printed and widely circulated in 1785 under the title Memorial and Remonstrance Against Religious Assessments .

Arguing that religious belief “must be left to the conviction and conscience of every man,” he opposed tax support for any and all denominations. However, the reason he advanced was not that of a Deist or an atheist but quite the opposite. He believed that any regulation of religion was “adverse to the diffusion of the light of Christianity,” which the Remonstrance accepted as the true faith. Madison denounced the bill as an expression of “unchristian timidity. ” His argument swayed enough votes to defeat the assessment bill.