When opponents of school vouchers and faith-based social services initiatives argue that the Constitution forbids these programs, they often cite, as their authority, a letter that Thomas Jefferson wrote in 1802 to a group of Baptists in Danbury, Connecticut. In the letter, Jefferson said that the First Amendment to the Constitution created a wall of separation between church and state.
Jeffersons Wall became the law of the land in 1947, when Justice Hugo Black invoked it in Everson v. Board of Education. The Wall, Black said, must be kept high and impregnable. . . . We could not approve the slightest breach. Under the Constitution, he said, government cannot pass laws which aid one religion or that aid all religions.
Half a century after Everson, Justice Blacks version of Jeffersons Wall still defines our understanding of the First Amendments injunction, Congress shall make no law respecting an establishment of religion. But there is a problem with this understanding: Blacks version of Jeffersons Wall isnt what Jefferson himself had in mind when he came up with the metaphor 200 years ago.
In the last decade, historians have shed new light on just what Jefferson did have in mind. In 1998, in an unexpected collaboration of scholars and crime busters, the chief of the Library of Congresss Manuscript Division, James H. Hutson, sent Jeffersons rough draft of the letter to the FBI for examination. Jefferson, Hutson observed, had heavily edited the draft. Words, phrases, entire lines were inked out, Hutson wrote. A marginal note was added to explain a section that was circled for deletion.
In the FBI lab, graphologists restored Jeffersons ink-stained words. The president, it appeared, had originally intended his letter to be a detailed statement of his administrations policy on religious matters. Jefferson was himself sensitive on the score of religion: some of his enemies in the Federalist Party had accused him of secret atheism. Why, they asked, did the president refuse to proclaim national feast days and days of mortification, as President Washington and President Adams had done? The opportunity to reply to the Baptists, Jefferson told his attorney general, Levi Lincoln, furnishes an occasion too, which I have long wished to find, of saying why I do not proclaim fastings & thanksgivings, as my predecessors did.
In his draft, Jefferson said that he had refrained from prescribing even those occasional performances of devotionï¿½such as Thanksgiving feastsï¿½that were, in his opinion, religious exercises. The duties of my own station, the president said, are merely temporal. Jefferson showed the draft to Lincoln, who advised him to omit the references to fasting and feasting. The attorney general said that the letter, as drafted, would only provoke anger in New England, even among the presidents friends. The people of the five N England governments, Lincoln wrote, have always been in the habit of observing fasts and thanksgivings in pursuance of proclamations of their respective executives. The custom, he said, was venerable, being handed down from our ancestors.
Jefferson acted on his attorney generals advice; he circled the relevant language for deletion. In a marginal note, he explained that the paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings etc. by their Executives is an antient habit & is respected. Jefferson also crossed out the assertion that the duties of his office were merely temporal. The result was a letter aimed at assuaging the feelings of friends of the administration who disliked established clergies without offending allies who rejoiced in Thanksgiving feasts.
But the letter to the Baptists was not a purely political exercise; it was also an effort to contribute to an ongoing debate about how to do justice, in the modern world, both to mans secular aspirations and his spiritual impulses. Two recent books, Daniel L. Dreisbachs Thomas Jefferson and the Wall of Separation between Church and State and Philip Hamburgers Separation of Church and State, describe the double nature of this debate. The strand most familiar to us today was the work of Enlightened secularists, who wanted a barrier between church and state in order to protect secular life from the aggrandizing power of religion. Luminaries like Voltaire and Thomas Paine believed that, where clerics got hold of the machinery of government, they invariably sought to monopolize truth and prevent the diffusion of any knowledge that threatened their supremacy. But in developing these arguments, the Enlightened secularists had themselves been influenced by Protestant sages (such as Martin Luther and Richard Hooker) who sought to erect a barrier to protect the churches from the state, which, they worried, might otherwise be tempted to trample on religion.
Jefferson is usually identified with the Enlightened secularistsï¿½with those who, like Voltaire, sought to protect a secular vision of life from the tyranny of the churches. But Dreisbach and Hamburger show that such a view is too simple: in building his Wall, Jefferson wanted both to protect mans secular life from religious authority and to shelter his spiritual life from secular forces that might otherwise overpower it. Jefferson was more sensitive to the value of religion than he is given credit for; and what are often taken as expressions of Jeffersonian hostility toward religion in general prove, on closer examination, to be expressions of Jeffersonian impatience with those whom he accused of trying to impose their own religious beliefs on others.
Jefferson thought religion essential to good government. No nation, he was quoted as saying, has ever yet existed or been governed without religion. Nor can be. Contrary to the holding of Everson, Jefferson believed that government can aid religion. Justice Blacks assertion that Jeffersons Wall requires government to forswear any role in the spiritual life of the people cannot be reconciled with Jeffersons own thoughts and acts.
Consider, for example, the University of Virginia, the work of Jeffersons winter years. The university was, and is, an institution aided by the government. But the university was not neutral on the question of religion. Jefferson did not, as some have asserted, prohibit the teaching of theology altogether in the university. In his Report of the Commissioners for the University of Virginia, Jefferson wrote:
In conformity with the principles of our Constitution, which places all sects of religion on an equal footing, with the jealousies of the different sects in guarding that equality from encroachment and surprise, and with the sentiments of the Legislature in favor of freedom of religion, manifested on former occasions, we have proposed no professor of divinity; and the rather as the proofs of the being of a God, the creator, preserver, and supreme ruler of the universe, the author of all the relations of morality, and of the laws and obligations these infer, will be within the province of the professor of ethics; to which adding the developments of these moral obligations, of those in which all sects agree, with a knowledge of the languages, Hebrew, Greek, and Latin, a basis will be formed common to all sects. Proceeding thus far without offense to the Constitution, we have thought it proper at this point to leave every sect to provide, as they think fittest, the means of further instruction in their own peculiar tenets.
Government, Jefferson here argued, can aid religionï¿½by, among other things, establishing a university that teaches the proofs of the being of a God, the creator, preserver, and supreme ruler of the universe, the author of all the relations of morality, and of the laws and obligations these infer. But government can proffer this aid, Jefferson believed, only in such a way as to maintain all sects of religion on an equal footing. For Jefferson, the equal footing principle permitted a state-subsidized professor of ethics to teach so much of theology and divinely sanctioned morality as all the sects agree on. The professor of ethics could legitimately provide a basis of religious and ethical instruction. Students who sought further instruction would have to apply to the sect of their choosing.
Some object that since Jefferson limited these observations to the practice of the state government of Virginia, under its state constitution, they do not necessarily reflect his views on the powers and duties of the federal government. Yale law professor Akhil Reed Amar, for example, has proposed that, while Jefferson was willing to flirt with governmental endorsements of religion at the state level, he argued for an absolutist interpretation of the First Amendment, and believed that the federal government should have nothing to do with religion in the states.
Amar notes that while President Jefferson in 1802 refused to proclaim a day of religious Thanksgiving, he had done just that as Governor Jefferson some 20 years before. But Amars theory does not address all the relevant facts. Jefferson could hardly have founded his opposition to presidential proclamations of Thanksgiving feasts on the language of the First Amendment: the Establishment Clause, in stating that Congress shall make no law respecting an establishment of religion, in no way limits the proclamatory powers of the president. True, Jefferson also cited the Tenth Amendment (powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people) to explain why he believed that the president as well as Congress was interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. But not even the invocation of the First and Tenth Amendments together adds up to the absolutist position that Amar detects in Jeffersons thinking about the federal governments relationship with religion.
As president, Jefferson authorized or condoned a variety of federal aids to religion. In January 1802, the president attended a service of Christian worship in the House of Representatives. During the remainder of his term, he was a most regular attendant at these services; the seat he first chose was ever afterwards by the courtesy of the congregation, left for him. What is more, the president, in his role as commander-in-chief, permitted the Marine Band to perform at the religious services in the legislature (with imperfectly inspiring results).
Jeffersons willingness to mobilize executive power in the service of religion did not end with his acknowledgment of the propriety of devotional exercises in the Capitol or his authorization of performances by the Presidents Own at these services. As president, he proposed (and the Senate ratified) a treaty with the Kaskaskias Indians, which provided for the federal governments maintenance of a Roman Catholic church. Pursuant to the treaty, the officiating priest drew a stipend from the United States Treasury. The president, too, permitted religious services, including the Christian communion service, at the War Office and the Treasury, buildings under his control.
As he tried to puzzle out the federal governments proper role in aiding religion, Jefferson groped his way slowly, perhaps intuitively, toward the equal footing theory of his University of Virginia commissioners report. Proclamations of Thanksgiving feasts were outï¿½not, as Amar contends, because they interfered with powers reserved solely to the states, but because they were too intimately connected to the practices of particular religious denominations. To prescribe a Thanksgiving feast day was, for Jefferson, to prefer one style of worship to other styles, and it was therefore outside the province of government.
By contrast, the effort to aid religion by permitting religious services to be held on federal property was, in Jeffersons view, consistent with the relevant constitutional obligations. The protocols governing these services favored no particular religious body. James Hutson has documented the nondiscriminatory nature of the devotional practices sanctioned by Jefferson: clergymen from various denominations officiated, on a rotating basis, at the services that he attended in the House, and a variety of sects received permission to offer up their liturgies in the office buildings he controlled.
Jeffersons acts as president possess a coherence beyond the accidents of expediency. It might be objected that his policy was not a national but a narrowly federal oneï¿½a policy that touched only U.S. government property and the life of the District of Columbia. However plausible this argument, it is not true to the realities of presidential power. Jefferson understood, as all presidents do, the effect of the telling gesture and the power of the symbolic act, the implications of a presidential smile or the shaking of the magisterial head. When he attended religious services in the Capitol, or when he permitted devotional exercises on federal property, he knew that the reverberations would be felt beyond the perimeters of the federal city. He meant his policy to move the nation as a whole.
My argument so far is a merely technical one, and it is no more likely than any other technical exercise to impel people to rethink the meaning of Jeffersons Wall. But Jeffersons equal footing theory of Establishment Clause jurisprudence is rooted in something deeper than the intellect. If we can recover not merely the theoretical and analytic, but also the spiritual pigments that colored Jeffersons conception of the proper relationship between God and man, and church and state, we shall, I think, be able to paint a fresh and arresting picture of his soul, bright enough to outshine Justice Blacks paler retouchings.
To do this we must tunnel into the mind from which the stones of Jeffersons Wall were quarried. If we dig down into that soil, we will find that Jeffersons reputation as a man who upheld what Kant called a religion within the limits of reason alone does not do justice to the richness of that earth. True, Jefferson professed himself a man of common sense and was skeptical of all those claims that Aristophanes classified under the heading speaking ingeniously concerning smoke. He was, in his philosophy, a materialist, and was devoted to the rational interpretation of empirical facts. But his yearnings outstripped his philosophy.
Consider, for example, Jeffersons liberty tree. The tree of liberty, he famously wrote in 1787, must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure. His words were provoked by Shays Rebellion in Massachusetts and by the question of whether the United States should adopt a new constitution, but the origins of the image lay deeper, in the war and revolution through which he himself had lived and suffered. In the struggle to vindicate American liberty, men had died, corpses had piled up. Jefferson had himself been hunted like an animal by British dragoons. When Benedict Arnold sacked Richmond, Jefferson, then governor of Virginia, fled for his life; some people said that he spent a night in January 1781 hiding in terror in a barn; he himself was always silent on the matter. Later Lord Cornwallis dispatched a raiding party to Monticello to seize the governor. Jefferson, warned in time, booted and saddled for an escape. But a man who has once been hunted does not forget the experience.
Jefferson developed theories to explain the place of violence in the world. The pugnacious humor of mankind, he told John Adams, seems to be the law of his nature, one of the obstacles to too great multiplication provided in the mechanism of the Universe. The cocks of the henyard kill one another up. Boars, bulls, rams do the same. And the horse, in his wild state, kills all the young males, until worn down with age and war, some vigorous youth kills him, and takes to himself the Haram of females.
But Jeffersons theory of a mechanism for population control in the universe is too neat, too clean, too reasonable to do justice to the savagery he himself had seen and felt. His clockwork explanations do not touch the great shadowed questions of existence: why we are born and how we grow; why we are compelled to make things and, through reproduction, to perpetuate life; why we strive with one another; why we suffer and decay and die. Neither the rationalist nor the materialist theories of the Enlightenment reached the heart of these mysteries; nor could they explain why men should feel such sadness when they beheld the violent processes of the universe at work, even in those cases where the violence is connected, as it sometimes is, to lifes creative floweringsï¿½as in the Revolution, where irrational butchery was midwife to our exquisite constitutional machinery, the intervolved wheels that bring order out of conflict.
I have often wondered for what good end the sensations of Grief could be intended, Jefferson confessed to John Adams. He was an old man when he wrote these words; he had watched five of his six children precede him to the grave. He had witnessed the deaths, from complications following childbirth, both of his young wife and one of his young daughters. But on the threshold of great age he was no nearer an answer. His Enlightened theories were unable to account for the feelings that these losses provoked in him. They did not even give him an adequate means of acknowledging the incomprehensibility of the horror.
It is an error to suppose that because a man holds a theory he is necessarily oblivious to all that his theory cannot explain. Jeffersons notion of the mechanism of the universe, his idea of the world as a well-regulated machine, grew out of the scientific theories of the age and the discoveries of men like Newton, one of his foremost heroes. But Jefferson understood the inadequacy of his theories before the great mysteries, and for this reason he resorted on occasion to a language tinged with mysticism and truer to the strangeness.
It is sometimes said that savants like Jefferson turned to the art of the Greeks and Romans because they found in the classical civilizations an aesthetic vocabulary consistent with the severe and rational geometry of their Enlightened ideals. In fact, however, Jefferson turned to the classical peoples precisely when his Enlightened oracles failed him; he found, in the archaic poetry of the Mediterranean, conceits that could touch aspects of existence beyond the reach of reason and common sense.
Though the neoclassical sages sometimes sentimentalized Greek and Roman poetry into sweetness and light, Jeffersons liberty tree was not at all a sentimental growth. The brutal language of the metaphor is as old as the Mediterranean fertility rituals, like that of Attys, a Phrygian king-god, said to have been transformed into a pine tree at his death. Each year, a ceremony of counterfeited slaughter ritually replicated his death. The blood of such a beingï¿½of Dionysus or Adonis, as well as Attysï¿½was a potent fertilizer: or so the ancient mythographers suggested.
A philosopher might contemplate with equanimity the supreme mechanism of the Universe; but in moments when his philosophy fails him, a man is bound to be agitated by the existence of machinery that so effectually provides for his own demise. Jefferson confessed that he discovered an antidote to the terrors of the life cycle in the classic pages of the Greeks and the Romans, pages that, he found, were sweet composers to that rest of the grave into which we are all sooner or later to descend. So hard did he squeeze those texts that he forced them, at last, to yield their droplets of balm. He smeared his liberty trees with blood and reconciled himself to the mysterious cycles of fertilization and growth, and of suffering and decay.
It was a motive deeper than reason that led him to preserve, in the idiosyncratic classicism of Monticello, emblems of his dark revelation. It was not entirely a temple of reason that he erected on that mountaintop. He labored, over many years, to make the house a place in which every column and cornice would embody, and nourish, some part of his imagination, the dark spots as well as the light. If you doubt it, look again at the interior friezes thereï¿½effigies of griffins and demon spirits, as well as (in the parlor) the knives, axes, and ambrosial bowls of the primitive blood sacrifice. Throughout the house are scattered images of bulls skulls, fatally garlanded: when, in imagination, the axes fell, and the blood flowed, the drippings nourished all those places in the masters soul that reason and Enlightenment could not refresh.
Jefferson pondered other mysteries that lay outside the domain of his Enlightened theories. They were by no means wholly dark. The old Western vocabularies of benevolence and compassion (caritas, agape) stirred him deeply. Pity and help any thing you see in distress, Jefferson advised his grandchildren. He tried, with mixed results, to honor the advice in his own life.
Doubtless some of Jeffersons ideas on this subject derived from the old Greek notion of love as the repairer of souls; but as a young man he absorbed, as well, the sentimental faith of the eighteenth century, those ideas of benevolence, humanity, and sympathy that graced the pages of the Scottish moral philosophers. Without the feelings of sympathy, of benevolence, of gratitude, of justice, of love, of friendship that were rooted in the human heart, Jefferson told Maria Cosway in 1786, men would lapse into a narrow and savage solipsism. But the core of this philosophy was much older than David Hume and Adam Smith; it was a secular edition of an older, more beautiful mysticism, the medieval language of love, the song of poets and visionaries.
In time, Jefferson went back to the originator of that harmonyï¿½the master workman, as he called him, who said: These things I command you, that ye love one another. Scholars such as Dickinson Adams, Paul K. Conkin, Edwin S. Gaustad, and Jean M. Yarbrough have in recent years illuminated the mature Jeffersons fascination with the Christian vision of loves place in the ordering of human life. Jefferson never accepted the divinity of Christ; but as president he assembled a digest of Christs teachings, which he believed showed that Jesus system of morality was the most benevolent & sublime probably that has been ever taught. The moral doctrines of Jesus were, he said, more pure & perfect than those of the most correct of the philosophers. Jesus, Jefferson said, went far beyond those philosophers in inculcating universal philanthropy, not only to kindred and friends, to neighbors and countrymen, but to all mankind, gathering all into one family, under the bonds of love, charity, peace, common wants and common aids. The president called his digest the Philosophy of Jesus, and he believed that it evinced the peculiar superiority of the system of Jesus over all others.
Critics have dismissed these exercises as so much Tartuffery. Of course, there is no way to know with certainty the quality of another mans heart; but, whatever might have been his motives in searching the Gospels, Jefferson was, during much of his career, quite honestly and demonstrably concerned to understand the place of benevolence in a commercial republic. Historians have been sensitive to Jeffersons desire, expressed in his idea of the Wall, to prevent the power of the churches from overmastering civil authority; but they have been less alive to this ambition of his to protect, from the expanding energies of commerce, certain privileged encounters between human beings. The spiritual disciplines, like the Christian ideal of caritas, that lift human relationships out of the realm of the utilitarian seemed to have no place in the new world that commerce was bringing into being. (Not that they had an altogether secure reign in the georgic world of Monticello, where Jefferson kept slaves.)
The fears Jefferson harbored became commonplace during the nineteenth century, and he was never as articulate a student of the problems that commercial growth entailed as some who came after him. But his approach to these difficulties was, in its own way, original; for, unlike many later critics, he never surrendered his Whig faith in personal freedom or in liberty of trade. And yet, even as he championed liberty, he worried that Americans would fail to do justice to the full possibilities of their freedom. He wondered whether they would not forget themselves, but in the sole faculty of making money.
It would be too much to say that he worked out a solution to the problem. Jefferson was not a theoretician, and, although he was an inspired writer, he was not a maker of books. But on the threshold of old age, he labored to show how traditions of benevolence and compassion could be made to flourish, in a small way, in the great Whig republic that he had, in his younger days, done so much to create.
If his public career was dedicated to the high and brilliant vindication of Whig liberty, the work of his private life and retirement was devoted to constructing pavilions of compassion strong enough to withstand the gales of the Whig world he had helped to make. He became the explicator of the little community, the miniature polis, those minor forms of moral and spiritual order that spring from pools of affection deeper than self-love. His contributions in these closed kingdoms, though less celebrated, were quite as valuable as his polished exercises in the forum and the curia. If his public work was made up of large, state-shaking endeavors, his private ï¿½uvre was a concise little collection of gemsï¿½bright, sharp, and intricate.
Monticello was one of these. The University of Virginia was another. In designing his academical village, Jefferson carefully thought out the elements that make for vitality in a little platoon. A naked and open daylight, he knew, was not enough; there must be masques and mummeries as well: the artist in Jefferson understood the role that a civilizing mysticism plays in the discernment and creation of desirable patterns of order. He introduced mystical touches even into the architecture, drawing upon the idiosyncratic classicism he had used in the decoration of Monticello. Ox skulls and demon spirits grace the porticos of the pavilions; the rotunda at the top of the lawn, built in the style of Emperor Hadrians pantheon in Rome, was a library that promoted the adoration of books, as the temple had been consecrated to the worship of the pagan gods. In their little athenï¿½ums, Jeffersons scholars would study, among other things, the moral precepts espousedï¿½and the divinity preachedï¿½by the teachers of the monotheistic faiths.
If we study with care Jeffersons idea of the nature and purpose of the sheltering pavilion in the modern worldï¿½the pillared place consecrated to caritas and marked off from lifes violence and hurtful competitionsï¿½we will deepen our understanding of the institutions that make up what is called civil society. We will then see that this phrase is too drab to do justice to the elements that make these sanctuaries vital, the work of faith and labor of loveï¿½the traditions, rites, and mysteriesï¿½that give an institution (a school, a family, a neighborhood, a church) a claim not only on our minds but also on our hearts. These private porticos are, for us, all that the public faith of the polis was to the ancient Greekï¿½the focus of our compassion. The Greek could invest his love in his city, for it was not too big for his heart; our cities are too big, and we must exercise our compassion in smaller communities. A man who lives in the modern city must, as the Italian poet Giacomo Leopardi said, build himself a little city within the great one.
Jefferson understood that communities like his own University of Virginia are, or rightly understood can be, the moral palestrae of the modern (Whig) civilization, places in which people learn to exercise their characters, and in which they are taught to develop qualities of soul that, though they have no measurable value in the Whig marketplace, are nevertheless necessary to civilized life.
The state has an obligation to help this civilizing work. The equal footing doctrineï¿½the theory that most closely approximates Jeffersons understanding of the purposes of the Wall erected by the First Amendmentï¿½teaches us that government can aid religion and the associations that perpetuate a godly vision of life. Jeffersons own struggles to shelter the spiritual impulse in a great Whig republic should inspire us to conclude that government really ought to do nothing less.