The FBI has been probing yet another set of presidential papers. But this time the investigation was called for not by independent counsel but by scholars working with the Library of Congress. And what they uncovered is not a sex scandal but the almost-forgotten doctrine of constitutional federalism.
FBI forensic experts examined a draft of President Thomas Jefferson’s 1802 Letter to the Danbury Baptists, in which he famously referred to the “wall of separation” between Church and State. That single phrase has long provided the pretext for restricting religious expression in schools and other public areas. But reading the heretofore scratched-out portions of the original text reinforced scholars’ belief that Jefferson intended no such thing.
Jefferson’s letter was in response to an appeal from Connecticut Baptists that he use federal authority to support disestablishment of the (Connecticut) state church—congregationalism. Although Jefferson favored the Baptists’ position, he refused, explaining the Constitution forbade the federal government from intruding in state matters.
The founders clearly intended to prohibit establishment of a national church like the Church of England, but just as clearly they believed states should regulate religious matters in their jurisdictions (that was the “wall of separation” Jefferson referred to). This limited view of federal authority is known as federalism, that is, authority not specifically given to the U.S. government is vested in the sovereign states.
But today the wall of separation phrase has been used not to keep the federal government out of the states’ business, but to remove any religious influence from public life. In a crucial 1947 decision (Everson v. Board of Education), the U.S. Supreme Court ruled that any governmental encouragement of religion is unconstitutional, Justice Black writing that Jefferson’s “wall [of separation]. . . must be kept high and impregnable.”
With help from the FBI’s discoveries, scholars like Daniel Dreisbach of American University are breathing new life into the doctrine of federalism. There are even signs of an emerging federalist majority on the Supreme Court, which has in a handful of rulings rebuffed the federal government’s efforts to take over authority such as the general police powers reserved to the states.
And across the country, citizens are fighting back in the states against the steady encroachment on public religious expression. In Kentucky, for example, where 20 years ago the Supreme Court ordered the Ten Commandments taken off classroom walls, the legislature has defied the courts and recently passed new legislation to put the Commandments back up. (It is reminiscent of what happened in Poland in the Cold War; when Communist authorities removed crucifixes from classroom walls, school kids marched through the streets holding them high.)
Others are following suit. Measures have been introduced in 11 states to post the Ten Commandments in public places. In Indiana and South Dakota, such measures have become law. In other states, bills have passed setting aside time for student-led prayer.
It is important to note that this is not just a campaign by religious conservatives. Public opinion polls show overwhelming general support: 86 percent in Kentucky, 74 percent across the nation.
Will the Court strike down these laws just as they have done for the last 30 years? That may depend on whether the recent trend toward federalism continues and makes its way into courts, whether the justices read Jefferson’s letter the way scholars now show he meant it.
Christians have a double stake in this issue. Obviously how the Court handles these cases profoundly affects the cause of religious liberty. But, as well, a renewed commitment to federalism is consistent with Christian doctrine. The idea of a limited central government, after all, arose from doctrines Catholics called “subsidiarity” and Reformers called “sphere sovereignty.” Both protect the roles of family, churches, and private associations in society and assert that governance is to be managed closest to the people. That is specifically why John Calvin favored a republican form of government.
Christians need to understand these issues and listen carefully to what presidential candidates say about their standards for judicial appointments; for the next president will likely appoint three new justices, who will either strengthen or reverse the move toward federalism. The success of this movement and the Court’s reaction to it will determine not only the character of our republic, but also whether Jefferson’s “wall” is erected where it belongs or perversely remains a barrier to religious liberty.
