The metaphorical phrase articulated by Thomas Jefferson and received by posterity as a “…a wall of separation between church and state” never even existed in this country in the years between the founding of the first English settlement at James Town, Virginia in 1607 and the year 1802-the year Jefferson framed it.  Jefferson, when President, “coined” the imaginative metaphorical phrase in a letter to a Christian Denominational Church (Baptist) in 1802-and that period of time spanned a total of nearly two hundred (200) years. It is simply a metaphor illustrating a jurisdictional issue that existed in the federal government over religion and meant nothing to the formation of our Constitution or Bill of Rights simply because it did not exist in that time span! It simply illustrated the fact that no religious jurisdiction of any type existed in the newly ratified Federal Constitution.

That Christian church had recognized, and had expressed disappointment to then President Thomas Jefferson, that the new federal government had no constitutional subject matter jurisdiction to intervene in a religious dispute the denominational church was having with a state government; and, therefore could not help them. The new federal government at that time had no subject matter jurisdiction over religion in the Constitution and could not intervene in any way to assist the church because the sovereign state governments had all subject matter jurisdiction over religion. Thomas Jefferson knew when he framed the expressive metaphor that it referred only to lack of subject matter jurisdiction of the federal government and not a statement of required or existing merit policy that the federal government could impose on the states who had all subject matter jurisdiction over religion.   

But, since Thomas Jefferson was a very popular president, that Denominational Christian Baptist church, nonetheless, sought his public political support for religious merit policy change in that state; and, published his letter in that state to try and move public opinion to bring about a change in state policy on religion. Jefferson, as his letter indicated, was in fact proud that the federal government had no subject matter jurisdiction over religion and personally wished then existing state governments, who had all sovereignty and jurisdiction over religion, and dealt with religion as they pleased-would “voluntarily” adopt the same absolutely hands-off policy imposed on the federal government in the Constitution. The states never did voluntarily! Jefferson felt the states should voluntarily refrain from any interference in assisting or retraining religion. The states did not entirely agree and most advanced the policy of infusing Biblical Christianity into state government but not establishing any one Christian Denominational Church as the state supported Church to the exclusion of others. Generally, most states advocated equality before government among Christian Denominational Churches, i.e. Baptist, Catholic, Lutheran, Presbyterian, Methodist, etc.  But the state governments would not advocate one and suppress another named Christian Denominational Church as England had solely supported and established the Church of England; and, as many European nations had done in establishing and supporting the Catholic Church as the sole state church for all to worship in and support to the exclusion of other Christian Denominations. But state governments almost in unison supported Biblical Christianity. But the federal government absolutely had no religious jurisdiction and could not force a state to adjust any policy on religion. Neither could the federal government, since it had no religious jurisdiction, establish any church as the national church to the exclusion of others. The states could establish a single state wide required Christian Church or any religion, having such jurisdiction, but chose not to. Each sovereign state dealt with religion as they deemed necessary until 1940 and 1947 when the US Supreme Court unilaterally changed the subject matter jurisdictional issue in the Constitution over religion and then quite brazenly maimed, discarded and substituted new language regarding the “establishment” clause in the First Amendment of the Bill of Rights.

 In 1940 and 1947 the US Supreme Court simply (1) “seized” previously non existing concurrent jurisdiction with the states over religion, with emphasis on the establishment clause, by bootstrapping and through stained, liberal wordy esoteric reasoning under the 14th Amendment; and, since they are the court of last resort in the federal constitution their word became law for all. The Court simply assumed religious jurisdiction although they and all the federal government were specifically denied religious jurisdiction in the body of the constitution. Neither is there any specific grant of religious jurisdiction in the 14th Amendment. The Court just “reasoned” it in through expansive wording. (2) The Court then mutilated the specific interpretive language of the “establishment clause” as was debated and approved in convention and ratified by the states by first changing “an establishment” of religion” from a noun form to a verb form! This changed the whole concept of what the clause said! There is no official record I can find of any court or government official defining the meaning of the establishment clause except by James Madison as President (President 1809-1817) when he vetoed two bills from Congress. President Madison used the phrase as was intended in a- “noun form” (it referred to “individual” churches (noun) in his two cases-not “establishing” (verb) a “religion” or “church”). Remember Madison, as a congressman, guided the Bill of Rights through Congress and assisted in debating and writing the very clause involved! He had even submitted suggestions! Madison had also been involved, as a delegate, in debating and ratifying the United States Constitution. He was everywhere as he also was a major contributor to the Federalist Papers which were written and published to persuade the states to ratify the Constitution.

The United States Supreme Court did not like and so ignored Madison’s explanation and wrote in their version to fit their religious philosophy. (3) The court then “reinterpreted” Jefferson’s “wall” metaphor from a “jurisdictional” issue to a “merits” issue to suit themselves. (4) Having completely reinterpreted Jefferson’s metaphor out of what was simply a personal letter, they then inserted their new interpretation into the “establishment” clause as the guiding light. No Congressman or state convention who approved and ratified the “establishment” clause had ever even heard the phrase in its original form must less the new mutilated form! The founding fathers did not debate or approve that metaphor. (5) Then the Court addressed the very limiting word “Congress” which is actually in the establishment clause, and debated and approved by the founding fathers. Its strict definition posed some issues to the Court’s new policy so they simply changed a reference to “Congress” of the United States into the near unlimited “Congress of the United States, State Legislatures and all levels of federal and state government”. (6) The Court then changed the very specific limiting word “laws” actually in the establishment clause, also approved by the founding fathers, into the near unlimited boundary of “any governmental action, federal, state, or local including laws”. That is a lot of proactive judicial action! No need to pay any attention to what is written in the constitution or suggest a constitutional convention-just re-write to suit the majority of nine (9) members!

The new federal government in our country in the late 1700’s was unique in many respects in all the world! After the revolution individual states had been absolute sovereign nations within their borders and had “inherent” jurisdiction and exercised that jurisdiction over ALL issues within their boundary before the federal government was formed. The new federal government had “no” inherent jurisdiction in any subject at all except what was specifically named and granted to it from the individual sovereign states in the body of the originally ratified constitution. Religion was not one granted. Additionally, while the federal government was refused direct subject matter jurisdiction over religion in the body of the original constitution, the federal Congress as a delegated legislative body was even additionally and further denied, in the First Amendment establishment clause, any “collateral jurisdiction” to make any laws that even “touched” on the issue of religion. James Madison dealt with this issue under the “establishment clause” when president. Madison is the only source I can find interpreting the establishment clause as written from ratification in 1788 until 1947 when the Court announced their version! The federal government and state governments knew what the establishment clause meant and did not need court cases to interpret. There was no national issue as to who had jurisdiction over religion-direct or collateral for over one hundred fifty (150) years!

Delegates to those conventions for the Constitution and Bill of Rights simply never heard of Jefferson’s original FUTURE metaphor. Jefferson, in fact in the future, based his metaphor on the already adopted Constitution and Bill of Rights they had approved! Nor did Thomas Jefferson have any input into the formation of those documents as He was Ambassador to France under the old Articles of Confederation and in France when they were debated. Jefferson had nothing to do with the formation of the Constitution. Jefferson had nothing to do with the formation of the Bill of Rights. Jefferson had nothing to do with the Federalist Papers. There is nothing in the records of the debates that refer to him personally, nor his opinions or nor anything he ever wrote and the phrase itself did not exist! James Madison, a contemporary of Jefferson in Virginia, was present in debates for the Constitution and Bill of Rights and contributed to the Federalist Papers but there is no evidence in records of debates anyone mentioned the concept, or mentioned Jefferson, or mentioned anything Jefferson may have written! Nor is the issue raised in the Federalist Papers. But we don’t have to guess about Madison’s interpretation of the establishment clause-he went further, in “practice” and “applied” it in government, as president and left us further record to tell us! Jefferson just left a line in a personal letter that meant nothing then and now and even re-interpreted from its original meaning! The United States Supreme Court chose an imaginative metaphor in a private politically inspired letter left by Thomas Jefferson, who contributed nothing to the Constitution and Bill of Rights, over a solid mountain record left by James Madison and the debates and ratification process of the Conventions, Federal Congress and the States!!!!

When the phrase was articulated by Jefferson, as president in1802, it was to metaphorically explain that no subject matter jurisdiction existed in the federal Constitution of the United States or the federal Bill of Rights over religion-direct or collateral. It was not a merits application issue. It had, when articulated, no reference to “any” wall existing or to exist between religion and the states-(13) colonies now designated states. No such wall existed in the states. The states had all jurisdiction over religion and in fact in their state constitutions and legislative enactments proactively inculcated Christianity and proactively inculcated equal protection for all Christian Denominational Churches into state government through legislative law and state constitutions. There were no “walls” but “bridges” to unite Christianity and state government-but not the doctrine and practice of a single Denominational Christian Church! There was no such protection for other world religions in the states or federal government and other religions weren’t even mentioned, but once, in state Constitutions!

The imaginative metaphor literally meant what it said in the original context in which it was delivered. The new FEDERAL government (not state government) simply had no subject matter jurisdiction over religion (Christianity included) and therefore could not establish any Christian Denominational CHURCH (even without any supposed restrictions in the First Amendment and standing alone) as the nationally supported arbiter of Christianity for all citizens to be required to support as the only Christian truth-but the body of the original Constitution did not forbid COLLATERAL LAWS OF CONGRESS that , falling short of national establishment of a church, might assist or restrain existing or future religions (in America Christian Denominational Churches). Therefore, “additionally” under the Bill of Rights, the federal national government could not “collaterally” assist or restrain, under the establishment clause, a religion (in America a Christian Denominational Church) by any law of Congress. When Thomas Jefferson coined the phrase, he was well aware of the jurisdiction issue. Lack of federal subject matter jurisdiction in the Constitution is a real “wall of separation” between church and state!

The phrase in the establishment clause in practice referred to individual Christian denominational “churches” (noun)not “religion” or “Christianity” in toto or establishing (verb) them” and ONLY applied to the lack of subject matter jurisdiction in the federal government. The US Supreme Court mutilated the whole concept of federal subject matter jurisdiction over religion to suit itself in 1940 (Cantwell v Connecticut, 310 US 296 1940) and the meaning of the establishment clause of the First Amendment in 1947 (Everson v Board of Education, 330 US 1, 1947)!

As to Jefferson’s explanatory metaphor the Supreme Court arbitrarily redefined the word specific “church” to “religion” and the word “state” from a reference limited to the federal government to “all administrative government federal, state and local” in the United States. After all, the Court had to make some drastic changes in the phrase from its original meaning to suit their new philosophy of the “establishment clause” in the First Amendment. They changed the metaphor from a subject matter jurisdictional wall metaphor to a subject matter merit’s application issue metaphorIt now bears no relationship to what Jefferson meant! The Court not only mutilated Jefferson’s phrase but they then just arbitrarily added their mutilated phrase of his phrase to the First Amendment as though it was debated, passed in Congress and ratified by the states. They even mutilated the actual existing language of the First Amendment that had been debated and ratified by Congress and the states (Congress shall make no law respecting an establishment of “religion…” Note: the phrase “an establishment” of religion” refers to one or more individual entities of “religion” (in America, individual Denominational Churches of the only “true religion”-Christianity. See discussion concerning “religion” in Colonial America by Governor Johnson of North Carolina on page 8) as a noun and is not a verb-so says James Madison who actually assisted in framing the original language after many debates and offerings (including his own) for the Amendment, to make it more amenable to the court’s mutilated phrase (See discussion in Roberts v Bradfield, 12 App. D.C. 453. 1898. That federal court was confused in trying to understand why Madison vetoed two Congressional bills simply “touching” on religion under the First Amendment and how he interpreted the “establishment” clause. Neither Congressional bill tried to “establish” (verb) a Church or religion! The bills just offered, in Madison’s view, favoritism for each individual denominational Christian church. But Madison had been in debates about it and assisted in drafting the First Amendment and knew what it meant! Don’t you think it strange that the federal government and state governments so well understood the collateral First Amendment, and lack of religious jurisdiction in the Constitution over religion; and, understood how they applied that there were no court cases to define application of it for over one hundred fifty (150) years from ratification of the Constitution and Bill of Rights. Since the court mutilated it in 1947 there have been multiple hundreds of cases, in agony and strained versions, trying to discuss, define and apply its new interpretation.   

The reasoning in Everson and following cases is as delicate and logical as ramming a large square peg into a small round hole while claiming it fits and always has!! The US Supreme Court eviscerated the specific clear language of the First Amendment by mutilating the definition of “the specific word “Congress” of the United States in the First Amendment and substituting their new constitutional definition of “Congress”, and in its place, defined the very narrow word “Congress” to mean “Congress, state legislatures and public rule making bodies”. That is a MIGHTY leap of arbitrary, esoteric legal fiction amounting to fantasy!!! As in the childhood fairy tale of “The Emperor’s New Clothes” the nation was told to see something that didn’t exist as always having been present and law of the land, through wise legal reasoning and historical facts that did not exist!! You may remember in the fairy tale the emperor actually had on no new cloths in the parade to show off his new cloths and was in fact naked, though he and the people were told he was wearing beautiful new cloths. A child, who was not dazzled by fancy words, pointed out the error! Who can tell the United States Supreme Court their dazzling new words of reasoning provide no cover to what the First Amendment actually says? Where is that child to help the nation?

Even after being coined by Jefferson in 1802 the phrase was ignored again by federal and state court systems until mentioned as a curiosity in 1876 (Reynolds v US, 98 US 145) in a federal case and that was another one hundred seventy-five (175) years of lack of interest by the courts and country in the phrase at all! The phrase meant nothing to constitutional law-either in original form or new altered form! The phrase was then ignored until 1947 another seventy-one (71) years, when the United States Supreme Court then ignored its lack of Constitutional subject matter jurisdiction over religion and additionally destroyed the “establishment” clause of the First Amendment-all through ignoble means; and, and redefined the phrase and jurisdiction. From 1607 until 1947-some 340 years the phrase meant nothing in its original meaning in constitutional law, and from having been mentioned as a curiosity in two cases before 1947 (some 340 years) it has now been quoted in its new mutilated version in hundreds and hundreds and hundreds of times in just seventy-five (75) short years as representing the sacred, revered, ancient and foundational constitutional law of the land from the beginning.  It is a pure legal myth of a “woke” court!

It is safe to speculate that if Jefferson had not articulated the phrase, we would still be operating under the Constitution and First amendment as the framers wrote them and the states ratified them. We must be thankful Jefferson muttered no other imaginative metaphors about the Constitution for the United States Supreme Court to grasp and engineer to their fantasy! If a future letter of Jefferson should surface with a constitutional metaphor we may be in trouble! Jim S. Brooks, retired inactive attorney-Bar #911, 2400 East Blackstock Road, Roebuck, S. C., 29376-3205. This email address is being protected from spambots. You need JavaScript enabled to view it.

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