November 2015 Church & State | Editorial

Mark Levin is an incendiary right-wing radio talk show host who has delusions that he is a constitutional scholar. During the recent Values Voter Summit in Washington, D.C., Levin decided to offer an opinion on the separation of church and state.

 “Separation of church and state is not in the Declaration, it’s not in the Constitution,” Levin told the crowd. “It’s in a letter that [Thomas] Jefferson wrote. I’m a big admirer of Jefferson. Jefferson was not at the Constitutional Convention.”

This is a common argument among the Religious Right these days, so it’s important to point out why it’s fallacious.

Levin and others who say this are correct that Jefferson did not attend the Constitutional Convention. He was living in Paris at the time, serving as America’s ambassador to France. Here is why the argument collapses: It assumes that because Jefferson was not physically present, he could not have had influence.

In fact, there was someone at the convention who very much embodied the ideals of Jefferson when it comes to church-state relations. This individual worked hand in glove with Jefferson in Virginia to end the established church there and bring separation of church and state to that colony. We refer here to James Madison, the Father of the Constitution.

Madison was, if anything, stricter on separation of church and state than Jefferson. While Jefferson employed the metaphor of a “wall of separation between church and state” in his famous 1802 letter to the Danbury Baptists, Madison actually put that wall into action.

As president, Madison vetoed a bill that would have given federal land to a church in Mississippi. He also vetoed legislation that would have given a church in Washington, D.C., a largely symbolic charter to care for the poor. Both measures, Madison noted in veto messages, ran afoul of the First Amendment.

Madison opposed chaplains in the military and made it clear late in his life that chief executives should not issue official prayer proclamations. He was so ardent about separation of church and state that he even opposed a census because it would have counted people by profession, and Madison didn’t believe the government had the right to tally up ministers.

Jefferson and Madison’s partnership was inspired. Jefferson, a romantic figure who literally towered over his contemporaries, has captured the public imagination. His writings are eloquent and statesmanlike.

Madison, a slight man who favored dark suits, tends to get overshadowed. Hundreds of books have been written about Jefferson, yet only a handful of Madison biographies stand out. His prose is workmanlike but efficient. He penned a great classic of religious liberty, “The Memorial & Remonstrance Against Religious Assessments” and shaped our Constitution. But if Madison is remembered at all today, it’s for presiding over the disastrous War of 1812 (when the British burned Washington) or for his marriage to the lively Dolley.

Yet it was Madison who carried forth the values he shared with Jefferson when our Constitution was drafted. It was Madison who wrote and rewrote the language of the First Amendment. It was Madison who later observed, “The experience of the United States is a happy disproof of the error so long rooted in the unenlightened minds of well-meaning Christians, as well as in the corrupt hearts of persecuting usurpers, that without legal incorporation of religious and civil polity, neither could be supported. A mutual independence is found most friendly to practical Religion, to social harmony, and to political prosperity.”

No, Jefferson didn’t attend the Constitutional Convention. Neither did William Blackstone nor John Locke, yet the framers freely acknowledged their influence on the Constitution and American law. Put simply, Jefferson didn’t need to be in the room to have influence; Madison represented it for him.

One of the ways Madison did that was by taking the values of Jefferson’s Virginia Statute for Religious Freedom and building them into the First Amendment. Although drafted by Jefferson, the statute didn’t become law until 1786. Jefferson was in France at the time, but Madison pushed it through the legislature.

That famous statute did two key things: It disestablished the Anglican Church in Virginia, and it guaranteed to all residents the right to worship as they saw fit. If these concepts sound familiar, it’s for a good reason. They are reflected in the two religion clauses of the First Amendment.

The Virginia Statute’s influence on the First Amendment is undeniable. Even many conservative legal scholars acknowledge this. So, no, Mr. Levin, Thomas Jefferson didn’t write the First Amendment; he merely penned the law that inspired it.

It would, of course, be a mistake to glorify Jefferson, Madison or any founder too much. They were human beings, which means they were flawed and sometimes full of contradictions. On occasions, their personal actions didn’t reach the level of their lofty rhetoric.

But Levin and those who think like him portray great ignorance when they attempt to edit the facts to fit a political agenda. The effort to dismiss Jefferson’s central role in the development of church-state separation is an example of that. It must be challenged wherever and whenever it appears.