by Kimberly Felton
Mark David Hall has no qualms about taking Supreme Court justices to task. “If justices are going to make historical arguments, they should make good ones,” he says.
Specifically Hall, Herbert Hoover distinguished professor of political science, wants to see justices correctly interpret historical evidence for cases involving religious liberty and church-state relations.
In the beginning was … Thomas Jefferson?
“Thomas Jefferson was a brilliant, unprincipled product of the Enlightenment,” Hall says. “He is completely unrepresentative of the American founders on many issues.”
Take, for instance, the First Amendment Religion Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ...”
Jefferson was not in America when the First Amendment was drafted and passed by Congress in 1789. He was America’s ambassador to France.
But in an 1802 letter to a group of New England Baptists, Jefferson wrote that the First Amendment creates a “high wall of separation between church and state.”
The memorable quote stuck, and in the mid-20th century, Supreme Court justices began using it as evidence that the founding fathers endorsed strict church-state separation. They haven’t stopped.
Its influence, says Hall, far outweighs its popularity among the founders – and even Jefferson did not regularly act upon it.
Setting the record straight
In 2006, Hall researched all 115 cases determined on Religion Clause grounds from 1940 to 2005, detailing for Oregon Law Review how Supreme Court justices used history.
- 76 percent of justices who have written an opinion in a Religion Clause case have appealed to history to validate their arguments.
- 54 percent of the historical references were to Thomas Jefferson or James Madison – by judges voting for strict separation.
- Only 17 percent of historical references were to Jefferson and Madison, by justices who do not favor strict separation. These justices are more than twice as likely to refer to other founding fathers.
Appealing only to Jefferson and Madison compares to leaning on Senator Ted Kennedy’s views to represent the Senate. “He is an important senator,” says Hall, “but he’s on the far left. It would be a bad argument to say he represents the entire Senate.”
The First Amendment was crafted, debated and voted on by 86 representatives and senators, and became part of the Constitution only after it was ratified by 11 state legislatures.
“Getting history right matters because we should strive to understand the past accurately,” Hall contends. “Simply getting the story straight is motivation.”
The difference an interpretation makes
If jurists are honest, “getting the story straight” can affect church-state cases, because “many decisions have been based upon the erroneous idea that the founders desired the complete separation of church and state,” Hall says.
For example, proponents of strict separation of church and state have argued that private Christian groups should not be permitted to meet at public universities; doing so violates the wall of separation between church and state.
Hall disagrees: Not only does the First Amendment permit religious groups to meet on public university campuses; it prohibits state universities from discriminating against them on the basis of religion.
This does not mean, Hall says, that Christianity should be imposed on the public. He favors instead a “robust system of pluralism.”
In the case of schooling, this system would give vouchers to parents to send children to their school of choice. “Public schools are often defended as being ‘neutral,’” Hall says, “but there is no such thing as neutrality.”
Rather than the state favoring one worldview, Hall believes the government should enable parents to send their children to schools they choose. “I would like all Americans to have the freedom President Obama has, to send his children to a private Quaker school if he wants to. The poor mom in D.C. doesn’t have that option,” he says.
Mark David Hall is the Herbert Hoover distinguished professor of political science. His new book, America’s Forgotten Fathers co-written with Gary L. Gregg, includes biographies of commonly overlooked members of the founding generation. Read more at butlerbooks.com.
Giving voice to America’s forgotten founding fathers
“Mark has a knack for identifying important research topics that have been somewhat overlooked by other scholars,” says Dr. Daniel L. Dreisbach, professor in the School of Public Affairs at American University in Washington, D.C. He and Hall have coedited several books, including The Forgotten Founders on Religion and Public Life.
“A recent survey of leading scholars identified James Wilson and Roger Sherman as two of the most important, yet neglected founding fathers,” Dreisbach says. “Long before this survey, Mark had turned his attention to these two founders. Today, Mark is widely regarded as the leading scholar on both Wilson and Sherman.”
Wilson, a Pennsylvania lawyer, played a significant role in the American Revolution, signed the Declaration of Independence, and served as one of the first U.S. Supreme Court justices.
“He is the most brilliant legal theorist of the founding era,” Hall says, “second only to James Madison in influencing the Constitution. He argued that human law must be based upon God’s natural law.”
Sherman was the only founder to help draft and sign the Declaration and Resolves (1774), the Articles of Association (1774), the Declaration of Independence (1776), the Articles of Confederation (1777, 1778), and the Constitution (1787).
Like Jefferson, Sherman authored a major religious liberty statute for his state, but unlike Jefferson, he was an active participant in debates over the Bill of Rights. He supported religious liberty, and thought government could promote Christianity.
Supreme Court justices have referenced Jefferson 112 times in Religion Clause opinions, but Sherman only three times. “That simply doesn’t make sense,” says Hall, “if justices are really interested in the views of all men who framed the First Amendment.
“When we look more broadly at the founding generation, arguments that the founders wanted the strict separation between church and state become untenable.”
Letting actions speak louder than words
The day after the House approved the Bill of Rights, Representatives voted to ask President George Washington to issue a proclamation of prayer and thanksgiving. The Senate agreed, and Washington complied with his famous 1789 Thanksgiving Proclamation.
“As appealing as the wall metaphor is to contemporary advocates of the strict separation … it obscures far more than it illuminates,” says Hall in an Oregon Humanities article. More illuminating is the context created by the founders’ actions.
Jefferson himself produces an example: Two days after he wrote his famous “wall” letter, he attended church services – in the U.S. Capitol.
In fact, the very men who drafted and approved the First Amendment also agreed to hire legislative chaplains and approved of legislative prayer.
Chipping away at the wall
In an important 2002 school voucher case, Justice Stevens alluded to Jefferson’s metaphor in his dissenting opinion: “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy.”
“Simply put, many justices and scholars focus on Jefferson and Madison because they appear to support a conception of church-state separation they find appealing,” Hall says in Oregon Humanities.
Though Hall makes it clear to his students that one might make other arguments for church-state separation, even based on Christianity, “it’s a patently bad argument to say founding fathers supported separation of church and state. It seems to me scholars making these arguments are either ignorant of the facts or are dishonest.”
As Hall and other scholars chip away at the wall built by misappropriated history, justices favoring the church-state separation have begun to avoid historical arguments. Knocking down this argument, Hall says, is important to preserve the ability of Christian universities to receive state and federal funds, and for students receiving state scholarships to be able to study subjects like religion and theology.
“Ultimately,” he says, “I hope that by undermining these bad historical arguments, I can play some small role in protecting religious liberty in America.”
And, he adds, “to have the founders on your side is always a good thing.”
Resurrecting the forgotten fathers
Mark David Hall’s intriguing takes on the founders associated with church and state separation
Hall’s drive to accurately understand the founding fathers’ original intent about separation of church and state compels him to scrutinize primary sources. He digs through the dusty archives, fingering pages long left unfingered, until he finds that draft law, long lost letter, or forgotten diary. And he understands why some of the founders are more well-known than others.
“The forgotten fathers were not the prolific writers, either politically or personally,” Hall says. “So we do not have as many references to their opinions as we do for, say, Thomas Jefferson – whose letters and documents will fill 75 volumes.”
So it’s relatively easy to get to know Jefferson. And Madison?
“James Madison is called the father of the bill of rights,” Hall says, “yet every one of his proposed amendments was altered and the one he considered most significant was not passed.”
During Hall’s tedious research, gossip from centuries ago comes to light.
Thomas Paine, he discovered, was “a Quaker of sorts who came to America and caused trouble, then went to France and caused more trouble. While in Europe, he wrote the famous deist work The Age of Reason. When he returned to America, no one except Thomas Jefferson wanted anything to do with him.
“Teddy Roosevelt called Thomas Paine a ‘dirty little atheist,’” Hall says. “He was largely correct.” The only reason scholars favoring the separation of church and state refer to Paine, he surmises, is to help support their argument that the majority of founders were deists.
According to Hall, “book after book is written arguing that the founders were deists seeking the separation of church and state. Each of these works has a laser focus on the few founders who held anything close to these positions.”
So who else should we know in the church-state argument? Hall shares some insights:
“George Washington is the father of our country. He supported religious liberty for all – including Catholics and Jews. But he did not take kindly to Quakers who refused to serve in the army.
“Other than Washington, no one deserves more credit for American independence than John Adams. He drafted the Massachusetts Constitution of 1780 which stated that because ‘the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality,’ the state should support Christianity.
“Oliver Ellsworth was Madison’s counterpart in the Senate committee finalizing the Bill of Rights, yet no one has ever heard of him. Is it any surprise that he did not favor the strict separation of church and state?
“Roger Sherman was an old Puritan in a new republic; a solid Calvinist. He helped craft and signed every major document in the founding era — including the First Amendment. One reason scholars have ignored him is that he does not share views widely held in the academy.
“James Wilson is the most brilliant legal theorist of the founding era, second only to James Madison in influencing the Constitution.
He argued that human law must be based upon God’s natural law.
“Luther Martin, the brilliant but drunken Anti-Federalist, warned that Washington, D.C., would become ‘the asylum of the base, idle, avaricious and ambitious.’ As Bill Kauffman points out, ‘thank goodness that never happened.’
“Then there is Button Gwinnett. He didn’t do much of anything, I simply like his name.
“And don’t forget the ladies — particularly Abigail Adams and Mercy Otis Warren — both of whom were pious, orthodox Christians.”
Hall has formed partiality toward some of the founders he’s spent so much time with.
- “I really like Sherman, Ellsworth, Washington, Adams and Wilson.
- “I dislike Jefferson and Paine.
- “I am ambivalent about Madison.
- “I respect them all.”