There Was Never Any First Amendment Wall

Randall Balmer is troubled. The John Phillips Professor of Religion at Dartmouth College fears that the “First Amendment, with its insistence on the separation of church and state, religion and politics, is under attack as never before.” Balmer’s recent book, Solemn Reverence: The Separation of Church and State in American Life, aims to shore up the “wall of separation” that he believes has served America well. According to an attorney from an organization that argued that the Bladensburg Cross was unconstitutional, the volume is “an antidote to the persistent threat of Christian Nationalism.” 

The American political tradition has always embraced the idea that church and state are separate institutions. Many colonies had established churches, but even in these cases churches were distinct from the governments. The First Amendment’s religion clause, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” makes it clear that the United States will not have an official, established church, but it in no way builds a wall of separation between church and state.

Revisionist History, Murky Jurisprudence

One might expect a work on the separation of church and state in America to consider Supreme Court cases on the subject, but Balmer informs us that he is “a historian, not a legal scholar . . . [so] I defer to those experts and their technical analysis.” He finds it hard to stick to this resolution, although ironically, his most revealing errors are mainly on a level of historical analysis.

On the very first page, we learn that Espinoza v. Montana Department of Revenue was “misbegotten,” a sentiment he reiterates on the last page of the book. This case involved a state program that provided scholarships that students could use at any “qualified education provider.” A majority of justices ruled that Montana could not discriminate against religious schools, a decision Balmer believes “opened the door for taxpayer subsidies to sectarian schools.” He is apparently unaware this door has been opened at K-12 schools for years (see, for instance, Zelman v. Simmons-Harris) and even longer for students attending “sectarian” colleges and universities such as Balmer’s alma mater, Trinity University (IL). The First Amendment, far from requiring discrimination against religious individuals and institutions, prohibits such discrimination.  

It is true that Balmer ignores most Supreme Court religion clause cases, including Everson v. Board of Education, the seminal case that applied the Establishment Clause to the states. In Everson, both the majority and dissenting opinions embraced the view that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.” In their respective opinions, Hugo Black and Wiley Rutledge utilized the worst sort of law office history to make the case that the Founders desired to build a wall of separation between church and state. Balmer’s treatment of the founding era differs little from these justices.     

The Founders and the First Amendment 

Like many activists, Balmer acts as if the First Amendment was almost solely a product of Madison’s pen. He begins by explaining that Madison “drafted twelve Amendments, but the first opened with the crucial matter of religious freedom and religious establishments.” Not exactly. On June 8, 1789, Madison made a speech encouraging his colleagues to take “into consideration the subject of amendments to the constitution” and proposing nearly twenty amendments. Among these was one that would prohibit states from restricting certain rights, which he considered to be “the most valuable amendment on the whole list.” He also proposed that the amendments be inserted into the Constitution. 

More than a month after this speech, a House committee consisting of one member from each state drafted a Bill of Rights consisting of eleven proposals. (The only handwritten draft of these amendments is by Roger Sherman). The committee eventually issued a printed report proposing nineteen changes to the Constitution. After revisions by both chambers, twelve amendments were sent to the states for ratification, but what we now know as the First Amendment was listed third. (The first was not ratified, and the second was not ratified until 1992, so the third proposed amendment became the First Amendment by default.)

Madison is regularly called the Father of the Bill of Rights, but these amendments were a product of both houses of Congress, and they were implemented only because they were ratified by enough state legislatures. The language of every amendment Madison suggested in his initial speech was altered, and the one that he believed to be the most important was rejected altogether. And the amendments were affixed to the Constitution rather than inserted into the original text as Madison proposed. It is simply bad history to attempt to understand these amendments solely in light of Madison’s views (as supplemented by Jefferson’s), but this is exactly what Balmer does with respect to the First Amendment’s Establishment Clause. And even with Madison and Jefferson, Balmer discusses only actions and texts that support his view that the Establishment Clause builds a wall of separation between church and state. This leaves him with a very unbalanced discussion of the Founders’ views.

We are told, for instance, that after Madison left the White House, he opined that “the formation of a congressional chaplaincy was ‘a palpable violation of equal rights, as well as Constitutional principles.’” This is true, but Balmer neglects to mention that Madison voted to pay the Confederation Congress’s chaplains and served on the committee to select chaplains for the first federal Congress. In the same document quoted by Balmer, the Detached Memoranda, Madison also questioned the constitutionality of presidential calls for prayer, but as president he issued four of them. 

It is telling that Franklin and Jefferson thought it appropriate to use overtly religious imagery and language in the national seal and motto.

We learn as well that President Adams issued two declarations for prayer and fasting that he believed cost him the election of 1800, and that Jefferson refused to issue such calls. But nowhere does Balmer mention that one day after the House of Representatives approved the First Amendment, it voted to ask President Washington to issue a Thanksgiving Day Proclamation. The Senate agreed to this proposal, and Washington complied and issued a theologically robust proclamation declaring November 26, 1789 to be “a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God. . .”

Similarly, Balmer provides a detailed account of the Baptist minister John Leland’s presentation of a mammoth cheese to President Jefferson and, on the same day, Jefferson’s penning his famous letter to the Danbury Baptists. This letter, of course, famously asserts that the Establishment Clause builds a “wall of separation between church and state.” Neglected in Balmer’s account is that two days after Jefferson wrote this letter, he attended church services within the U.S. Capitol building, where he heard John Leland preach. Nor are we reminded that Jefferson permitted the War and Treasury Department buildings to be used for church services, a practice continued by President Madison.

Early in his book, Balmer reports that in 1776 Congress appointed a committee to develop a seal and motto for the new nation, and that this committee recommended the motto E Pluribus Unum. But this account skips over some important details. Notably, two of the three members of the 1776 committee, Benjamin Franklin and Thomas Jefferson, agreed that the national seal should feature: 

Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharoah who is sitting in an open Chariot, a Crown on his Head and a Sword in his hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity.  Motto, Rebellion to Tyrants is Obedience to God.

Their recommendation was not accepted, and six years later a different committee suggested, and Congress agreed, to a different seal and the motto E Pluribus Unum. Nevertheless, it is telling that Franklin and Jefferson thought it appropriate to use overtly religious imagery and language in the national seal and motto.

As I suggest above, and as I have argued in detail elsewhere, there is simply no good historical argument that the Establishment Clause was understood by the Founders to erect a wall of separation between church and state. Even Madison and Jefferson, who wanted a greater degree of separation than most of their colleagues, did not act as if such a wall existed when they held public office. It would be far more honest for those desiring the separation of church and state to simply recognize this historical reality, say the Founders were wrong, and then make philosophical, prudential, or even theological arguments in favor of their position. 

Church and State in the Modern Era

America’s Founders did not understand the Establishment Clause to require a wall of separation between church and state, but by 1947 Supreme Court justices asserted it did. How did this idea arise? Philip Hamburger argues persuasively in Separation of Church and State that the profound anti-Catholicism of American Protestants from the Civil War to the early 1960s contributed greatly to its development. Balmer includes a brief chapter on the 1875 constitutional amendment proposed by James Blaine which would have amended the Constitution to prohibit states from funding sectarian (read: Catholic) schools. When the amendment failed, many states adopted similar amendments to their constitutions, known today as “Baby Blaines.” 

The Establishment Clause prohibits the governments from establishing a religion, and there are good, prudential reasons for separating church and state in some respects. But it does not require governmental hostility towards religious individuals or organizations.

Anti-Catholicism remained alive and well in the twentieth century. It was a major motivation behind Oregon banning private schools, all but one of which were Roman Catholic. Balmer ignores this incident. He does mention the mid-twentieth century anti-Catholic activist Paul Blanshard, but he doesn’t acknowledge that Hugo Black, author of the majority opinion in Everson v. Board of Education, was influenced by Blanshard’s books. Nor does he even allude to the organization that Blanshard helped found: Protestants and Other Americans United for Separation of Church and State. 

Balmer’s distortion of the historical record in the service of promoting the separation of church and state is problematic, but that does not mean that he is wrong regarding the virtues of church-state separation properly understood. He ably describes the defeat of Patrick Henry’s general assessment bill, disestablishment in Connecticut, and the rejection of a constitutional amendment that would have declared the United States to be a Christian nation. I join him in celebrating these outcomes, and agree that they have helped religion flourish in America.

But advocates of more extreme versions of a “wall of separation” have used the metaphor to support the demolition or removal of religious monuments on public property (e.g., a 1925 Latin Cross now on public land), erecting them in the first place (e.g., Ohio’s Holocaust Memorial featuring a Star of David), and to support arguments against accommodations to protect religious citizens (e.g., laws permitting religious pacifists to avoid military service). It has also been used to support the view that governments should deny benefits to religious entities simply because they are religious (a position the Supreme Court has deemed impermissible, as illustrated by the “misbegotten” decision in Espinoza v. Department of Revenue). The Establishment Clause prohibits the governments from establishing a religion, and there are good, prudential reasons for separating church and state in some respects. But it does not require governmental hostility towards religious individuals or organizations. Indeed, a major purpose of the First Amendment is to prohibit such hostility. 

Finally, it must be noted that like Isaac Kramnick and R. Lawrence Moore’s The Godless Constitution: A Moral Defense of the Secular State, Balmer’s book does not have any footnotes or endnotes. Randall Balmer can be a good historian. He should focus on writing real history and leave law office history to others. It is laudable that academics like Balmer care about constitutional, political, and social matters, but they should not misuse their professions in the service of what they consider to be good causes.