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QUESTION...

In what American  founding document do we find the phrase "Separation of Church and State"?

ANSWER...

None. The phrase was taken from a letter to the Danbury Baptists on January 1, 1802 from President Thomas Jefferson. Read on...

Separation of Church and State - By David Barton (Wallbuilders.com)

In 1947, in the case Everson v. Board of Education, the Supreme Court declared, "The First Amendment has erected a wall between church and state. That  wall must be kept high and impregnable. We could not approve the slightest  breach." The "separation of church and state" phrase which they invoked, and  which has today become so familiar, was taken from an exchange of letters  between President Thomas Jefferson and the Baptist Association of Danbury,  Connecticut, shortly after Jefferson became President.  The election of Jefferson – America's first Anti-Federalist President – elated many Baptists since that denomination, by-and-large, was  also  strongly Anti-Federalist.  This political disposition of the Baptists was understandable, for from the early settlement of Rhode Island in the 1630s to  the time of the federal Constitution in the 1780s, the Baptists had often found themselves suffering from the centralization of power.

Consequently, now having a President who not only had championed the rights of Baptists in Virginia but who also had advocated clear  limits on the centralization of government powers, the Danbury Baptists wrote Jefferson a letter of praise on October 7, 1801, telling him:

 
Among the many millions in America and Europe who rejoice in your election to office, we embrace the first opportunity . . . to express our great  satisfaction  in your appointment to the Chief Magistracy in the United States. . . . [W]e  have reason to believe that America's God has raised you up to fill  the Chair of  State out of that goodwill which He bears to the millions which  you preside  over. May God strengthen you for the arduous task which providence  and the voice  of the people have called you. . . . And may the Lord preserve  you safe from  every evil and bring you at last to his Heavenly Kingdom through  Jesus Christ  our Glorious Mediator. [1]

However, in that same letter of congratulations, the Baptists also expressed to Jefferson their grave concern over the entire concept of the  First Amendment, including of its guarantee for "the free exercise of  religion":
 
Our sentiments are uniformly on the side of religious  liberty:  that religion is at all times and places a matter between God and  individuals,  that no man ought to suffer in name, person, or effects on account of his  religious opinions, [and] that the legitimate power of civil government  extends  no further than to punish the man who works ill to his neighbor. But sir, our  constitution of government is not specific. . . . [T]herefore what  religious  privileges we enjoy (as a minor part of the State) we enjoy as favors  granted,  and not as inalienable rights.
[2]

In short, the inclusion of protection for the "free exercise of  religion" in the constitution suggested to the Danbury Baptists that the  right  of religious expression was government-given (thus alienable) rather than  God-given (hence inalienable), and that therefore the government might someday  attempt to regulate religious expression. This was a possibility to which they  strenuously objected-unless, as they had explained, someone's religious  practice  caused him to "work ill to his neighbor."

Jefferson understood their concern; it was also his own. In  fact, he made numerous declarations about the constitutional inability of the  federal government to regulate, restrict, or interfere with religious  expression. For example:
 
[N]o power over the freedom of religion . . . [is] delegated  to  the United States by the Constitution. Kentucky Resolution, 1798
[3]

In matters of religion, I have considered that its free  exercise is placed by the Constitution independent of the powers of the general  [federal] government. Second Inaugural Address, 1805 [4]

[O]ur excellent Constitution . . . has not placed our  religious  rights under the power of any public functionary. Letter to the  Methodist  Episcopal Church, 1808 [5]

I consider the government of the United States as interdicted  [prohibited] by the Constitution from intermeddling with religious institutions . . . or exercises. Letter to Samuel Millar, 1808 [6]

Jefferson believed that the government was to be powerless to  interfere with religious expressions for a very simple reason: he had long  witnessed the unhealthy tendency of government to encroach upon the free  exercise of religion. As he explained to Noah Webster:
 
It had become an universal and almost uncontroverted position  in the several States that the purposes of society do not require a surrender of  all our rights to our ordinary governors . . . and which experience has  nevertheless proved they [the government] will be constantly encroaching on if  submitted to them; that there are also certain fences which experience has  proved peculiarly efficacious [effective] against wrong and rarely obstructive  of right, which yet the governing powers have ever shown a disposition to  weaken  and remove. Of the first kind, for instance, is freedom of religion.
[7]

Thomas Jefferson had no intention of allowing the government  to  limit, restrict, regulate, or interfere with public religious practices. He  believed, along with the other Founders, that the First Amendment had been  enacted only to prevent the federal establishment of a national   denomination – a fact he made clear in a letter to fellow-signer of the  Declaration of Independence Benjamin Rush:
 
[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the  clergy a very favorite hope of obtaining an establishment of a particular form  of Christianity through the United States; and as every sect believes its own  form the true one, every one perhaps hoped for his own, but especially the  Episcopalians and congregationalists. The returning good sense of our country  threatens abortion to their hopes and they believe that any portion of power  confided to me will be exerted in opposition to their schemes. And they believe  rightly.
[8]

Jefferson had committed himself as President to pursuing the  purpose of the First Amendment: preventing the "establishment of a particular  form of Christianity" by the Episcopalians, Congregationalists, or any other  denomination.

Since this was Jefferson's view concerning religious  expression, in his short and polite reply to the Danbury Baptists on January 1, 1802, he assured them that they need not fear; that the free exercise of  religion would never be interfered with by the federal  government.  As he explained:

Gentlemen, – The affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the  Danbury Baptist Association give me the highest satisfaction. . . . Believing  with you that religion is a matter which lies solely between man and his God;  that he owes account to none other for his faith or his worship; that the  legislative powers of government reach actions only and not opinions, 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. 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. I reciprocate your  kind prayers for the protection and  blessing of the common Father and Creator  of man, and tender you for yourselves  and your religious association assurances  of my high respect and esteem.
[9]

Jefferson's reference to "natural rights" invoked an  important  legal phrase which was part of the rhetoric of that day and which  reaffirmed his  belief that religious liberties were inalienable rights. While  the phrase  "natural rights" communicated much to people then, to most citizens  today those  words mean little.

By definition, "natural rights" included "that which the  Books  of the Law and the Gospel do contain."
[10] That is, "natural rights"  incorporated what God  Himself had guaranteed to man in the Scriptures. Thus,  when Jefferson assured  the Baptists that by following their "natural rights"  they would violate no social duty, he was affirming to them that  the free exercise of  religion was their inalienable God-given right and  therefore was protected from  federal regulation or interference.

So clearly did Jefferson understand the Source of America's  inalienable rights that he even doubted whether America could survive if we  ever  lost that knowledge. He queried:

And can the liberties of a nation be thought secure if we  have  lost the only firm basis, a conviction in the minds of the people that  these  liberties are the gift of God? That they are not to be violated but with  His  wrath?
[11]

 Jefferson believed that God, not government, was the Author and  Source of our rights and that the government, therefore, was to be  prevented  from interference with those rights. Very simply, the "fence" of the  Webster  letter and the "wall" of the Danbury letter were not to  limit  religious activities in public; rather they were to limit the power of  the  government to prohibit or interfere with those expressions.

Earlier courts long understood Jefferson's intent. In fact,  when Jefferson's letter was invoked by the Supreme Court (only twice prior to  the 1947 Everson case – the Reynolds v. United States case in  1878), unlike today's Courts which publish only his eight-word separation  phrase, that earlier Court published Jefferson's entire letter and then  concluded:
 
Coming as this does from an acknowledged leader of the  advocates of the measure, it [Jefferson's letter] may be accepted almost as an authoritative declaration of the scope and effect of the Amendment thus  secured. Congress was deprived of all legislative  power over  mere [religious] opinion, but was left free to reach  actions which were in  violation of social duties or subversive of good  order. (emphasis added)
[12]

That Court then succinctly summarized Jefferson's intent for  "separation of church and state":
 
[T]he rightful purposes of civil government are for its  officers to interfere when principles break out into overt acts against peace  and good order. In th[is] . . . is found the true distinction between what  properly belongs to the church and what to the State.
[13]

With this even the Baptists had agreed; for while wanting to see the government prohibited from interfering with or limiting religious  activities, they also had declared it a legitimate function of government "to  punish the man who works ill to his neighbor."

That Court, therefore, and others (for example,  Commonwealth  v. Nesbit and Lindenmuller v. The People),  identified actions into  which – if perpetrated in the name of religion – the government did have legitimate reason to intrude. Those activities  included  human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide,  advocation and promotion of immorality, etc.

Such acts, even if perpetrated in the name of religion, would  be stopped by the government since, as the Court had explained, they were  "subversive of good order" and were "overt acts against peace." However, the  government was never to interfere with traditional   religious practices outlined in "the Books of the Law and the Gospel" – whether  public prayer, the use of the Scriptures, public acknowledgements of God,  etc.

 Therefore, if Jefferson's letter is to be used today, let its  context be clearly given – as in previous years. Furthermore, earlier Courts had  always viewed Jefferson's Danbury letter for just what it was: a  personal, private letter to a specific group. There  is probably no other instance in America's history where words spoken by a single individual in a private letter – words clearly divorced from their  context – have become the sole authorization for a national policy. Finally,  Jefferson's Danbury letter should never be invoked as a stand-alone document. A  proper analysis of Jefferson's views must include his numerous other statements  on the First Amendment.

For example, in addition to his other statements previously  noted, Jefferson also declared that the "power to prescribe any religious  exercise. . . . must rest with the States" (emphasis added).  Nevertheless, the federal courts ignore this succinct declaration and choose rather to misuse his separation phrase to strike down scores of State laws  which  encourage or facilitate public religious expressions. Such rulings  against State  laws are a direct violation of the words and intent of the very  one from whom  the courts claim to derive their policy.

One further note should be made about the now infamous "separation" dogma. The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding  Fathers who framed the First Amendment. Significantly, not only was Thomas  Jefferson not one of those ninety who framed the First Amendment, but also,  during those debates not one of those ninety Framers ever mentioned the phrase  "separation of church and state." It seems logical that if this had been the  intent for the First Amendment – as is so frequently asserted-then at least one  of those ninety who framed the Amendment would have mentioned that phrase; none  did.

 In summary, the "separation" phrase so frequently invoked today  was rarely mentioned by any of the Founders; and even Jefferson's  explanation of  his phrase is diametrically opposed to the manner in which  courts apply it  today. "Separation of church and state" currently means almost  exactly the  opposite of what it originally meant.
 
Endnotes

1. Letter of October  7, 1801, from Danbury (CT) Baptist Association to Thomas Jefferson, from the  Thomas Jefferson Papers Manuscript Division, Library of Congress, Washington, D.  C. (Return)

2. Id. (Return)

3. The Jeffersonian  Cyclopedia, John P. Foley, editor (New York: Funk & Wagnalls, 1900), p.  977; see also Documents of American History, Henry S. Cummager, editor  (NY: Appleton-Century-Crofts, Inc., 1948), p. 179. (Return)

4. Annals of the Congress of  the United States (Washington: Gales and Seaton, 1852, Eighth Congress,  Second Session, p. 78, March 4, 1805; see also James D. Richardson, A  Compilation of the Messages and Papers of the Presidents, 1789-1897  (Published by Authority of Congress, 1899), Vol. I, p. 379, March  4, 1805. (Return)

5. Thomas Jefferson, Writings  of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: The  Thomas Jefferson Memorial Association, 1904), Vol. I, p. 379, March 4, 1805. (Return)

6. Thomas Jefferson, Memoir,  Correspondence, and Miscellanies, From the Papers of Thomas Jefferson,  Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, pp.  103-104, to the Rev. Samuel Millar on January 23, 1808. (Return)

7. Jefferson, Writings,  Vol. VIII, p. 112-113, to Noah Webster on December 4, 1790. (Return)

8. Jefferson, Writings,  Vol. III, p. 441, to Benjamin Rush on September 23, 1800. (Return)

9. Jefferson, Writings,  Vol. XVI, pp. 281-282, to the Danbury Baptist Association on January 1, 1802.

10. Richard Hooker, The Works  of Richard Hooker (Oxford: University Press, 1845), Vol. I, p. 207. (Return)

11. Thomas Jefferson, Notes  on the State of Virginia (Philadelphia: Matthew Carey, 1794), Query XVIII,  p. 237. (Return)

12. Reynolds v.  U. S., 98 U. S. 145, 164 (1878). (Return)

13. Reynolds at 163. (Return)