The First Amendment was ratified in 1791.
The “wall of separation” was inserted in 1947.
It came from a private letter, not the Constitution.
By Jeff Bayard | Does the Constitution Really Say? — Part 5
This is Part 5 of Does the Constitution Really Say? — a series by Jeff Bayard asking whether the Constitution really says what the courts now say it says. Read Part 1, Part 2, Part 3, and Part 4.
Ask the average American where the phrase “separation of church and state” appears in the Constitution. Most will say the First Amendment.
It does not appear there. It does not appear anywhere in the Constitution. The phrase was lifted from a single private letter Thomas Jefferson wrote on January 1, 1802 — sent not to Congress, not to a constitutional convention, but to a group of Baptists in Danbury, Connecticut. For nearly a century and a half it sat where Jefferson left it: in personal correspondence, cited occasionally, never treated as the meaning of a public clause.
Then in 1947, the Supreme Court reached into that letter, pulled out one sentence, and welded it onto the First Amendment. The clause did not change. What Americans were told the clause meant changed completely.
So this is the question worth asking. Does the Constitution really say there is a “wall of separation” between church and state?
What the Words Meant
The First Amendment’s religion clauses read in full: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In 1791 the words meant something concrete. No establishment meant no federal church — no American equivalent of the Church of England, no national denomination set up by Congress and supported by federal taxes. It was a structural limit on the federal government, not a national rule about religion.
When the First Amendment was ratified, several of the thirteen states still had their own established churches. Massachusetts had Congregationalism; Connecticut and New Hampshire maintained state religious establishments well into the 1800s. The First Amendment did not abolish those arrangements. It could not. The clause was written precisely to keep Congress out of them — to leave religion to the states, to localities, and to the people.
Two Virginians knew this better than anyone. James Madison drafted the First Amendment. Thomas Jefferson had already, in 1786, secured passage of the Virginia Statute for Establishing Religious Freedom — the second of the three accomplishments he asked be inscribed on his tombstone. Virginia’s own Constitution went further still. Article I, Section 16, drafted by George Mason in 1776 — ten years before the federal Bill of Rights — protects religious conscience as an affirmative right of every citizen:
“All men are equally entitled to the free exercise of religion, according to the dictates of conscience…”
Virginia did not lean on the federal Constitution to protect religious liberty. Virginia wrote the prototype. The Virginia Supreme Court has said as much: Virginia’s religious-liberty provisions have “a vitality independent of the Federal Constitution.” (A.E. Dick Howard, Commentaries on the Constitution of Virginia.) Or as the same court put it in 1946: “No State has more jealously guarded and preserved the questions of religious belief and religious worship as questions between each individual man and his Maker than Virginia.”
This is the soil the First Amendment grew out of. Religious liberty as conscience between man and his Maker, with the state restrained from intruding. Not a wall locking faith out of public life.
What the Words Now Mean
In Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court rewired the Establishment Clause in two moves.
The case itself involved a small thing. A New Jersey law reimbursed parents for the cost of busing their children to school, including parochial schools. The Court, by a 5–4 vote, upheld the reimbursement. On the outcome, the Court was permissive. But the reasoning Justice Hugo Black built into the opinion has shaped religion-clause law ever since.
Black’s first move was to take the Jefferson letter and treat it as the meaning of the Constitution. “In the words of Jefferson,” Black wrote, “the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.'” He then added: “That wall must be kept high and impregnable. We could not approve the slightest breach.”
Notice the swap. The text of the First Amendment forbids Congress from making a law “respecting an establishment of religion.” The clause is a structural rule about what Congress can do. Black replaced that with a metaphor from a private letter — and treated the metaphor as the operative meaning. A wall. High. Impregnable. None of those words is in the Constitution. They are Jefferson, on January 1, 1802, writing to a Baptist congregation.
Black’s second move was to apply the Establishment Clause against the states themselves, through the Fourteenth Amendment. The clause that had restrained Congress now restrained every state and every local government in the country. A federalism protection became a national rule of secularism — applied against the states whose religious arrangements the clause had originally been written to protect.
The outcome of the case did not announce the change. The reasoning did the work.
What Happened Next
Once a wall is in place, courts will be asked to enforce it.
A father wants his child to pray in a public school. A high-school football coach kneels at midfield after a game. A nativity scene appears on a county courthouse lawn. A teacher reads from the Bible at a moment of silence. In each case, the courts have been asked to measure whether the practice “breaches the wall” — a wall that does not exist in the constitutional text but governs constitutional outcomes anyway. Sometimes the wall has held; sometimes it has come down. The underlying assumption has held steady: religion in public life is a problem for judges to measure, not a tradition presumed lawful unless Congress establishes a national church.
The men who ratified the First Amendment lived in a country where state legislatures opened with prayer, public officials swore oaths on the Bible, and the Continental Congress called for national days of thanksgiving and humiliation. None of that was understood to violate the clause they had just written. It cannot be — because they wrote the clause, and they continued the practices.
The Strongest Argument the Other Way
The strongest argument for the Everson approach has real force. Jefferson’s letter, though private, captured a genuine strand of Founding-era thinking. Madison himself worried about religious establishment and the dangers of state-supported faith. The Fourteenth Amendment, the argument runs, was meant to extend fundamental protections against state action — and freedom of conscience belongs on that list.
But the Framers anticipated exactly this. They built into the Constitution a mechanism for legitimate change — Article V, the amendment process. If Americans wanted to nationalize a wall of separation enforceable against the states, Article V was the way: debated, voted, ratified by the people through their representatives. The illegitimate path was the other one. Take a single sentence from a private letter. Treat it as the meaning of a public clause. Apply that meaning, by judicial decree, against the religious arrangements of every state and locality in the country. Change through amendment is self-government. Change through judicial discovery is rule by five.
Did God Really Say?
Jeremiah saw the pattern long before there was a First Amendment:
“Thus says the LORD: ‘Stand in the ways and see, and ask for the old paths, where the good way is, and walk in it; then you will find rest for your souls.’ But they said, ‘We will not walk in it.'” — Jeremiah 6:16
The Framers walked old paths. They knew what an established church looked like, what it cost, and what it suppressed. They wrote the First Amendment to protect against the federal version of that danger while leaving conscience between every man and his Maker. They did not invent a wall. They did not need one. They drew a line — concrete, knowable, defensible — and trusted the people of each state to govern their own religious life within it.
The Court in 1947 was shown the old paths. It would not walk in them. It found a new path in a single private sentence. The pattern this series has tracked through eminent domain, commerce, citizenship, and the criminal law had now reached the first freedom — the freedom on which the Framers said all others rest.
What the Citizen Does
Read the document. Know what it actually says. When you are told that the Constitution requires a “wall of separation between church and state,” ask where those words appear. They do not appear in the Constitution. They appear in a letter. Does the Constitution really say that?
There is no better place to begin than Constitution 101 and the other free online courses from Hillsdale College. Hillsdale accepts no state or federal taxpayer funding — not even student aid — which keeps its teaching independent of political pressure. Dozens of courses, no cost, self-paced. Start with Constitution 101.
For Virginians, there is a second place to look: your own state Constitution. Article I, Section 16 — Mason’s words, ratified in 1776 — still protects religious conscience in language stronger than anything in the federal First Amendment. The Supreme Court of Virginia confirmed as much in Vlaming v. West Point School Board (2023), recognizing a viable religious-conscience claim under Article I, Section 16 on grounds independent of the federal Constitution. Virginia’s religious-liberty protection has, in the court’s own phrase, a vitality independent of Washington. That is a Virginia legacy worth knowing — and worth defending.
The next piece turns to the other half of the religion clause — the Free Exercise Clause — and to Employment Division v. Smith (1990), the case that quietly removed strict scrutiny from religious-liberty claims against neutral laws of general applicability. Everson built the wall tall against religion in public life. Smith lowered the protection religion has against the laws that constrain it.
