The Volokh Conspiracy
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Why Do We Have An Establishment Clause?
Speaker Mike Johnson was both right and wrong
Last month, House Speaker Mike Johnson caused a stir by stating in an interview that "the separation of church and state is a misnomer." Johnson was responding to a skeptical interviewer on CNBC who asked whether it was appropriate for Johnson to be seen praying on the House floor. In response, Johnson said the following:
The Founders wanted a vibrant expression of faith in the public square because they believed that a general moral consensus in virtue was necessary to maintain this grand experiment in self-governance….
The separation of church and state is a misnomer. People misunderstand it…. It comes from a phrase that was in a letter Jefferson wrote. It's not in the Constitution. And what he was explaining is, they did not want the government to encroach upon the church, not that they didn't want principles of faith to have influence on our public life."
We need more faith in public life, he continued:
Not an establishment of any national religion. But we need everybody's vibrant expression of faith, because it's such an important part of who we are as a nation.
Critics objected that Johnson's sentiments were dangerously ahistorical and un-American. But Johnson was at least partly right--which means, of course, that he was also partly wrong. He was right about the phrase "separation of church and state" not appearing in the First Amendment, but in a letter Thomas Jefferson wrote about a decade later. The Supreme Court picked up Jefferson's phrase more or less by accident in the mid-nineteenth century (you can read about it here). And he was right that many of the Framers thought religion essential for public morality and would not have objected to religion's influence on government.
Where Johnson went wrong, though, was presenting those views as the only ones. Plenty of people at the time of the Framing thought that the Establishment Clause was there to protect Christianity from state corruption. But others thought that the Clause was meant to keep government free from religious bigotry and fanaticism, which had ruined European politics for centuries. Indeed, Madison's famous Memorial and Remonstrance, written during the Virginia Assessment Controversy of the 1780s, argued against a tax for the payment of clergy on the ground that such a tax was dangerous both for the church and the state. Presumably, Madison knew he had to appeal to both sides if he wanted to prevail (as he did).
As Phillip Munoz has recently shown, Americans have been debating the point of the Establishment Clause from the beginning--and they continue to do so now. Johnson presented one side of that debate, but it's not the only one. My colleague, Marc DeGirolami, and I have recorded a podcast on Johnson's comments that explores the controversy in more depth. You can listen to the episode here.
