View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by The Catholic University of America Columbus School of Law Catholic University Law Review Volume 26 Issue 1 Fall 1976 Article 6 1976 Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment David Little Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation David Little, Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U. L. Rev. 57 (1977). Available at: https://scholarship.law.edu/lawreview/vol26/iss1/6 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THOMAS JEFFERSON'S RELIGIOUS VIEWS AND THEIR INFLUENCE ON THE SUPREME COURT'S INTERPRETATION OF THE FIRST AMENDMENT David Little* In The Americans: The Colonial Experience, Daniel Boorstin suggests that one of the characteristics of the "American frame of mind" is the "belief that the reasons men give for their actions are much less important than the actions themselves,"' and he associates this belief with the Founding Fathers. This essay will summarize the pervasiveness and significance of this belief with regard to Thomas Jefferson's views of religion and of the relation of religion to the civil order. 2 It will also explore, in a very preliminary manner, the influence of this belief-with its implicit disparagement of all reasons for action, including religious reasons-on the Supreme Court's interpretation of the first amendment. Toward this end, the opinions of the Court in two 3 4 late 19th-century decisions, Reynolds v. United States and Davis v. Beason will be analyzed. Reynolds is the Court's earliest discussion of the "free ex- ercise" clause of the first amendment, and it is there that Jefferson's famous phrase regarding "the wall of separation between Church and State" made its first appearance in judicial literature. Davis draws heavily on the conclu- sions reached in Reynolds. In both these decisions, the Court found the Mormon practice of polygamy to be a crime, regardless of the religious beliefs which supported the practice; and in justifying its opinion, the Court relied on Jefferson's writings. It is this author's contention that however beneficial Jefferson's influence was in some respects, his views also had a befuddling effect on the reasoning of the * Professor of Religious Studies, University of Virginia. B.A., 1955, College of Wooster; B.D., 1958, Union Theological Seminary; Th.D., 1963, Harvard University. 1. D. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 151 (1958). 2. For a more detailed treatment of this subject, see D. Little, The Origins of Perplexity: Civil Religion and Moral Belief in the Thought of Thomas Jefferson, in R. RICHEY & D. JONES, AMERICAN CIVIL RELIGION 185-210 (1974). 3. 98 U.S. 145 (1878). 4. 133 U.S. 333 (1890). 5. This phrase first appeared in a letter from Thomas Jefferson to a Committee of the Danbury Baptist Association (Jan. 1, 1802), reprinted in A. KoCH & W. PEDEN, THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 332-33 (1944). Catholic University Law Review [Vol. 26:57 Court, particularly at the point of disparaging reasons and beliefs in relation to action. A more detailed discussion of the connection between Jefferson's religious views and the Reynolds and Davis decisions will follow in the second part of this article. I. JEFFERSON'S VIEWS OF RELIGION In examining Jefferson's views of religion and of the relation of religion to the civil order, we need to apply to his views the same kind of persistent scrutiny he often applied to the views of his opponents. We shall be more interested in what Jefferson did believe, than in what he rejected, despite the fact that he himself was sometimes more attentive to the latter than he was to the former. Since we shall implicitly raise some objections to Jefferson's point of view, let us take account of two cautionary comments. First, in some ways it is more fashionable lately to debunk Jefferson than to defend him. Fawn Brodie's book, Thomas Jefferson: An Intimate History,6 sets the pace. There is something unseemly about relishing the discovery of flaws, or of alleged flaws, in the character and thought of national heroes. This is a temptation to be resisted, especially in the case of a man of Jefferson's de- served eminence. On the other hand, the greater the man, the more honest scrutiny he can endure. Second, although this article will question the frame of mind within which Jefferson understood the relation of religion to the civil order, including his famous doctrine of the separation of church and state, there is no doubt that Americans have enjoyed important benefits as a result of Jefferson's success- ful campaign to disestablish religion at the national level. Even some of Jefferson's severest critics concede that his "record on religious liberty was really quite exceptional" 7-vigorously defended and consistently put into practice against profound resistance. What has had great benefits, however, has also had some costs. Let us now begin to identify the frame of mind in which Jefferson de- veloped his views of religion, which in turn led to his doctrines of religious liberty and the separation of church and state. What did Jefferson mean by the famous words from his letter of 1802 to the Danbury Baptists? 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 worship, that the legislative powers of government reach actions 6. F. BRODIE, THOMAS JEFFERSON: AN INTIMATE HISTORY (1974). 7, L, LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE 21 (1963). 1976] Interpretation of the FirstAmendment only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legis- lature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of sep- aration between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of con- science, 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.8 Further, what did Jefferson mean by the words from the Preamble to the Act for Establishing Religious Freedom (1786), that "our civil rights have no dependence on our religious opinions?" 9 When Jefferson drew a bold line between "opinions" and "actions," as he did in the first passage, or between "opinions" and "civil rights," as he did in the second, he had more in mind than meets the eye. He made those distinctions because he considered the opinions or beliefs of people to be basically irrelevant and unimportant in respect to their actions. In conduct- ing one's life, in acting properly, and in doing the right thing, there is a sure, clear guide at hand that does not involve much thinking or deliberating, or much worrying about different opinions and beliefs-that is, the sure, clear guide of common sense. Jefferson was emphatic and explicit: this simple guide is a sense, and one that has little need of what he calls "the uncertain 10 combinations of the head."' "This sense of right and wrong . is as much a part of [human] nature as the sense of hearing, seeing, feeling, . as much a part of man as his leg or arm . ... " And, he concludes, this sense is "so much a part of our constitution that no error of reasoning 12 might lead us astray from its observation in practice.' Jefferson believed this capability must be cultivated and tutored by means of education. Moreover, government and the force of law is required to in- tervene when a citizen's common sense fails him, that is, when he violates his easily perceivable social duties. Generally, however, Jefferson was opti- 8. Letter to a Committee of the Danbury Baptist Association, supra note 5 (emphasis added). 9. Preamble to the Act for Establishing Religious Freedom (1786), reprinted in A. KocH & W. PEDEN, supra note-5, at 3i2. For a copy of Jefferson's original text before deletions were made by various deliberative bodies that considered the document, see J. BOYD, THE PAPERS OF THOMAS JEFFERSON 545-47 (1950). 10. A. KOCH & W. PEDEN, supra note 5, at 404. 11. Id. at 430-31. Jefferson belonged to the "sentimentalist" or "sensationalist" branch of 18th-century moral intuitionism, a position that was distinctly and self- consciously opposed to the rationalist branch of intuitionism. It is a serious mistake to label Jefferson a "rationalist." See D. Little, supra note 2, at 206-07 nn.20 & 21. 12. A. KOCH & W. PEDEN, supra note 5, at 636. Catholic University Law Review [Vol. 26:57 mistic about the reliability and availability of common sense, if human beings attempt to use it."s Above all, Jefferson regarded himself as a scientist-a scientist in all things, including human action. From Jefferson's point of view, to be a sci- entist meant that truth in every aspect of life should and could be determined by the scientific method--or, as he called it, the "experimental method"-- which employs seeing, hearing, feeling, and the other senses in ascertaining truth.