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Hastings Constitutional Law Quarterly

Abstract

Constitutional history can be used or misused. Historical analysis can provide insight into provisions shrouded in opaque language. But constitutional history also can be used to mislead, painting an intentionally distorted picture of people or events.

In the vast majority of its opinions analyzing the First Amendment's Establishment Clause that also include a historical account from Thomas Jefferson, the Supreme Court has consistently stated that Jefferson viewed the Establishment Clause as the embodiment of the church-state separation principle. However, if Jefferson were alive today and could read the Court's account of his views, he would be horrified. A distrust of centralized federal authority was the hallmark feature of Jefferson's political philosophy.

This article looks at the actual works of Jefferson and concludes in fact that the Court has grossly misstated his position when justifying its interventionist actions. Beginning with Jefferson's writings during his time in the Virigina legislature and moving through his mature writings on church and state, this article argues that the "wall of separation" is properly understood as a wall that prevented federal interference in state regulation of religion, rather than a wall that barred states from aiding religion.

This article does not take a position on whether a federally mandated separation of church and state is sound policy. Instead, this article merely advocates the position that there is no justification for citing Jefferson in support of such a federal church-state separation policy.

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