The Volokh Conspiracy
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Jefferson, Wine, and the Wall of Separation
The Dangers of Amateur History at the Court
Many people know Thomas Jefferson's phrase about a "wall of separation between church and state." Fewer know how that phrase entered constitutional law. It's a curious story, which I discuss in a new Legal Spirits podcast with historians Don and Lisa Drakeman.
The story begins with Jefferson's 1802 letter to the Danbury Baptists, written to reassure them that he shared their view of church-state relations. In that letter, Jefferson wrote that the First Amendment had built "a wall of separation between church and state." The metaphor was memorable, but the letter was not widely circulated and largely disappeared from public memory.
This was not surprising. Jefferson played no direct role in drafting of the Constitution or the First Amendment. Although he wrote the Virginia Statute for Religious Freedom in the 1780s, which influenced American thinking about liberty of conscience, he was abroad during the Philadelphia Convention and, by the time Congress proposed the Bill of Rights in 1789, he was serving as Secretary of State. The Religion Clauses were the product of Madison and the First Congress, not Jefferson.
The Danbury letter might have remained obscure but for a rediscovery in the 1870s. Chief Justice Morrison Waite, with the help of his neighbor, historian George Bancroft, came across the letter and cited it in Reynolds v. United States (1879). The Court in Reynolds upheld the federal government's prosecution of a Mormon defendant for practicing polygamy, despite his claim of religious obligation. Waite distinguished between belief and conduct: Congress could not legislate about belief, but it could regulate conduct that violated social duties or threatened public order. To support this distinction, Waite quoted Jefferson's Danbury letter, treating him as an authoritative interpreter of the First Amendment.
But Waite didn't stop there. He also invoked an earlier piece of Jefferson correspondence, a letter to a Virginia wine merchant, in which Jefferson remarked that the Constitution should be ratified and then amended to add an express protection for religious freedom. That letter was largely about Jefferson's views on wine, not constitutional design, yet Waite used it to suggest that Jefferson was an "acknowledged leader" of the movement for a bill of rights. By relying on this passing aside, buried in a letter on an entirely different subject, Waite sought to link Jefferson directly to the First Amendment.
The move was "stunningly flimsy," the Drakemans argue. Jefferson's letters were written in contexts removed from the adoption of the First Amendment. Yet Waite elevated them into constitutional law, where they would play an outsized role for more than a century.
Indeed, Jefferson's metaphor of the "wall of separation" dominated the Court's Establishment Clause jurisprudence in the twentieth century. Although the Court has stepped away from the metaphor in recent decades, preferring instead a "history and tradition" approach, Jefferson's words remain influential in law and politics. Few metaphors in American constitutional history have had greater staying power.
This curious episode illustrates both the power and the risks of judicial reliance on history. Offhand remarks in private correspondence—about constitutional law, but mostly about Bordeaux—became touchstones for constitutional doctrine. The episode reminds us that history can take on a life of its own in ways the Founders themselves never imagined.
In the podcast, the Drakemans and I discuss Jefferson, Waite, and Bancroft, the risks of amateur history at the Court, and Jefferson's other writings on religious freedom. You can listen to the full conversation here.
