Question by Lisa: No separation of church and state in the Constitution?
This idea was presented in a LETTER by Thomas Jefferson regarding politics in the pulpit, but was never present in the constitution itself: “The Sixth Circuit’s judges tried to put the hinges back on by bluntly reminding the ACLU-affiliated attorneys of what is, and what is not, in the Constitution. “The ACLU makes repeated reference to the ‘separation of church and state,’” said Judge Richard Suhrheinrich, who wrote the appeals court decision. “This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.”
I would like someone to tell me WHERE this is in the Constitution, because, well, it’s simply not in there. Prove otherwise.
Best answer:
Answer by coragryph
The literal phrasing isn’t in the Constitution because the concept was so obvious to the Founders (and anyone else who has studied Constitutional law in depth) that it went without saying. But it’s nothing new to Constitutional scholars.
The phrase was first adopted by the Supreme Court in 1878, a century before Suhrheinrich took the bench. Yes, Thomas Jefferson was the originator of the quote. And according to the Supreme Court, the phrase should be taken as “an authoritative declaration of the scope and effect of the [1st] amendment thus secured.” Reynolds v. U.S., 98 U.S. 145 (1878).
It’s been US doctrine for almost 130 years, decades before the ACLU was ever imagined, and was referred to in 1943 as “our accepted belief” and “cardinal in the history of this nation and for the liberty of our people”. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
So those who missed it must not have been paying attention.
Besides, you are mis-using the word “separate”. Two things are separate when they are distinct, different, not the same. The point of the 1st Amendment (and the “no religious oaths” clause in Article VI) was to guarantee that religion did not control govt, and that govt did not control religion. Thus, the two are distinct, not the same, separate.
{EDIT}
There’s also nothing in the Constitution that says the police cannot search your car at whim, or that you have a right to post a website. A website is not “speech”, it’s electronic signals. So, by the literal text, it wouldn’t be protected. Nor is there anything in the Constitution that requires Miranda warnings, or guarantees you an appointed attorney if you cannot afford one. Those are all Supreme Court interpretations of the text. Just like the 130-year-old ruling that the Constitution requires separation of church and state.
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