Who Separates Church from State?

The phrase "wall of separation between church and state" has become a lightning rod for heated debate. This phrase is from Thomas Jefferson's letter to the Danbury Baptists in Connecticut and is understood by some to reflect the reasoning behind the establishment clause of the First Amendment

What is overlooked in almost all of the debates is that, logically speaking, the "wall of separation" is one thing if it is built from (and viewed from) the perspective of the people or the church. It is quite another if it is built from (and viewed from) the perspective of the legal system or the state. In a free republic, the wall of separation between church and state can only be built by the people or the "church."[i] It cannot be built by the state

Here are Jefferson's words to the Baptists in Danbury:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Notice who Jefferson credits with having built the wall: "the whole American people."  Congress cannot build the wall separating church and state.  It is not allowed to.  Congress, in fact, "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  That is what the amendment specifically states.  According to Jefferson, it is the people who have built the wall of separation between church and state through the process of amending the constitution.[ii]

There is a stunningly beautiful symmetry in Jefferson's reasoning that has gone largely unnoticed. The congress agreed, through the amending process, that it had no power either to respect a specific religion or to prohibit the practice of any specific religion. Because it agreed to this via constitutional amendment, the congress cannot readdress its right to retain its power over religion.  The congress has no power over religion. None.[iii]

But the people do retain their power over religion. Each person may choose his or her religion and each person may publicly exercise that religion. Jefferson is surely correct on this subtle, but vital, point. If the people build the wall between the church and state, it is an act of free will.  If we choose to render unto Caesar what is Caesar's and unto the Lord what is the Lord's, then we have defined what things we consider to be specifically political and what issues we take to be specifically spiritual.
What can the federal government (the congress, the president,[iv] or the Supreme Court) [v] do to build or to change the wall?  Nothing. Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The central government cannot be the creator of the wall of separation between church and state in a free republic. Continuing the example from Christian theology, if Caesar issues the command to render unto Caesar, I am forced to obey Caesar's command at the point of the sword. But if Christ (and by "Christ" I mean here the body of the church or people)[vi] issues the same command, I follow it of my own free will. I voluntarily keep Christ's commandment to follow the law of the land out of love for my savior and out of a desire to help bring about the Kingdom of God.

There is another reason why the central government cannot build the wall. In the Danbury letter, right before he credits the people with building the wall of separation between church and state, Jefferson states:
Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions...

In other words, the central government cannot decide what is political and what is spiritual because these are matters of opinion that vary from person to person.  These are issues between each individual "man and his god." In a free republic, the central government has no right to inform matters of personal opinion of its citizens.

After Jefferson's assertion that the people have erected a wall of separation between the church and state, he continues:

Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Jefferson understood that as we struggle, as a people who have fallen from grace, to build and rebuild the wall separating church and state, we do so for the specific purpose of perfecting ourselves, our families, and our communities in our efforts "to restore to man all of his natural rights."

We, as a people, build the wall of separation between church and state ... to keep the government out of our right to worship whatever god we choose.

Larrey Anderson is a philosopher and writer living in Idaho.  He can be reached at ldandersonbooks.com

[1] "Church" here means the people and the sum total of their religious perspectives. This would include non-believers who choose to believe there is no god. (All emphases in this article are mine.)

[ii] The congress plays a role in the amendment process but the congress does not and cannot amend the constitution by itself. The congress did not enact the First Amendment. The people did.

[iii] This does not, of course, preclude the individual states from playing a role in religion. The people of each particular state are free to erect walls within walls to protect their religious rights. (My understanding is that all of our state constitutions also guarantee, in some form, freedom of religious expression.) The intent was to have religious diversity on a state-by-state basis ... creating a kind of national shopping mall for religious diversity and freedom.

[iv] (a) Jefferson specifically states in the Danbury letter that his role, as President of the United States, is to execute congressional acts. After the passage of the First Amendment, the congress had no authority in religious matters. The congress was not constitutionally allowed to create any laws dealing with religion. So, logically, Jefferson pledged to refrain "from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church..."

(b) Jefferson was subject to the state and local "walls" or acts established by the people to separate the church and state.  This is what he means when he says in the next phrase that he is "subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect." See note 3.

[v] In the recent past, the U.S. Supreme Court has usurped this right reserved to the people by the First Amendment.  Since the congress shall pass no law respecting an establishment of religion or prohibit the free exercise of a religion, and since the job of the Supreme Court is to insure that the congress does not pass laws outside of the scope of the constitution, the only role the Supreme Court should play in this issue is to declare unconstitutional all laws that attempt, in any fashion, to either respect (grant privilege) to a specific religion or to prohibit the practice of any religion. For more on the Supreme Court and the rights of the individual, see my article "Privacy and Property Rights."

[vi] See note 1.