Yesterday I wrote about a letter to the editor from the Peoria President of the ACLU dealing with the First Amendment.  I mentioned that several months ago I challenged anyone to prove the phrase “wall of separation of church and state” was in the Constitution and that no one did.  However, over those months several letters were written in defense of the Supreme Court and the “rightness” of the phrase.  Many of the letters used Thomas Jefferson as the source of the phrase which is probably correct.

However, relying on Jefferson as the authority on the “establishment clause” and therefore this so called “wall of separation” has several problems.  First as I’ve pointed out, the phrase simply is not in the Constitution.  Any reasonable person should expect that if that was the desire of the writers of the amendment; then the writers would have used that phrase when they wrote the First Amendment.  Why would the writers encrypt the First Amendment?  They did not!


Secondly, Jefferson was not particularly involved in writing the Bill of Rights or the First Amendment.  “Therefore, although President George Washington endorsed a bill of rights in his inaugural address and James Madison vigorously advocated a bill of rights in the House of Representatives in June 1789, most members of Congress opposed even discussing the matter.  Madison, however, persevered and obtained the necessary two-thirds vote to send draft amendments to the Senate.  The Senate modified the amendments and eliminated some key provisions, particularly limitations on the states.  On 25 September 1789, Congress agreed to twelve amendments, and by 15 December 1791, two years later, the necessary three-quarters of the states had ratified ten of these amendments, which have become known as the Bill of Rights.”
(The Oxford Companion to United States History; Edited by Paul S. Boyer; Oxford University Press, Inc.; New York, New York, 10016; 2001; page 73.)


James Madison is given credit for marshalling the Bill of Rights through the House of Representatives.  So, where was Thomas Jefferson at that time?  Was he a member of the House of Representatives?  No.  Was he a member of the Senate?  No.  In 1785, he was appointed as U.S. ambassador to France replacing Benjamin Franklin.  He did not receive permission to return to the U.S. ending his ambassadorship to France until September of 1789 the same month and year that Congress approved the proposed Bill of Rights that were then sent to the states for ratification.  


Therefore, unless Jefferson was carrying on long distance telephone calls with Congress or flying back to the U.S. periodically to shepherd the Bill of Rights through Congress, he was not eminently involved in the passage of the Bill of Rights.
Therefore, at best, the “wall of separation” as advocated by Jefferson was his personal opinion of how the “establishment clause” should be interpreted.  It was not the interpretation given by the writers of the Bill of Rights nor was it the interpretation given by the Supreme Court for the first one hundred and fifty years of its existence.


Furthermore, if the supporters of the “wall of separation” are going to use Thomas Jefferson as their source, they have another problem.  Thomas Jefferson opposed the Supreme Court’s use of the power of judicial review—the right of a court to declare a law to be unconstitutional.  “Marshall’s Federalist Party had lost the presidency and Congress, but Marshall was determined to fight back.  And so the doctrine of judicial review was born.  Yes, the Constitution is indeed the supreme law of the land.  But now the Court, by its own fiat, would decide what is or is not constitutional.  The Constitution’s structure, including the balance of power between the three branches, was now broken.

Although Jefferson is claimed by modern Democrats as the father of their political party, he was a leading opponent of judicial activism.  After Marbury (Marbury v. Madison, the first time the Supreme Court ruled a congressional law unconstitutional—my addition), Jefferson became an even more vocal critic of what he viewed as the overreaching of the judiciary under Marshall’s leadership.


To Abigail Adams, John Adam’s wife, Jefferson wrote a year after Marbury: ‘The Constitution … meant that its coordinate branches should be checks on each other.  But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.’    
        
Jefferson’s concern about judicial power grew stronger as he passed into old age.  From Monticello, in 1820, the author of the Declaration of Independence wrote to William C. Jarvis:

‘To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men and not more so.  They have with others the same passions for party, for power, and the privilege of their corps … and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.’


Neither the history of our founding nor the establishment of our government supports the current arrangement in which the judiciary rules supreme….  For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.”  (Men in Black: How the Supreme Court is Destroying America; Mark R. Levin; Regnery Publishing, Inc.; Washington, D.C., 20001; 2005; pages 32-33.)


It seems Thomas Jefferson was a political prophet.  He foresaw and predicted the Courtocracy of the present United States!