Wednesday, 29 June 2005

Going to the wall

Will Baude disagrees with Todd Zywicki’s assertion that the “wall of separation between church and state” is a modern coinage, pointing to Thomas Jefferson’s 1802 letter to the Danbury Baptist Association.

While it’s true that Jefferson did write the letter, and he is a “founder” in some senses of the term, on the larger issue I’m not sure his opinion is dispositive as to whether or not the First Amendment should be understood as erecting a “wall of separation,” particularly since Jefferson was an executive branch official (Secretary of State to George Washington) at the time. James Madison’s position (as chief author of the Bill of Rights) would be more dispositive—and, in fact, Madison appears to have staked out a somewhat different position closer to the “coercion” and “neutrality” tests than either strict separation or Lemon.

Whether or not this should matter when interpreting the Constitution, however, is another question entirely.


Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.
[Permalink] 1. William Baude wrote @ Thu, 30 Jun 2005, 7:39 am CDT:

Chris: I agree on all points. Except, perhaps, your accusation that Jefferson is only sort of a founder.


What Will said.


If you don’t conflate “founder” and “framer” (which is a common mistake—I think even the American Government textbook I use does this), then he’s a full “founder”; but Jefferson had little to do with the Constitution or Bill of Rights, except as intellectual inspiration (or as the guy who filed the serial numbers off of Locke, if you’re more of a cynic). And, ultimately, I think the Constitution is far more important than the Declaration, both historically and (of course) legally.

[Permalink] 4. William Baude wrote @ Thu, 30 Jun 2005, 2:36 pm CDT:

Agreed on the founder/framer divide. It seems likely, from the tenor of the ensuing debate, that most people read “founder” as “framer” but this is wrong.


Irony of ironies, I allowed the same (framer/founder) mistake to slip through this week when finishing up my Congress syllabus. sigh.

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