President Jefferson was unkind, and unhelpful, to modern strict separationists

2 Apr

Digital Copy of the Treaty made between President Jefferson, the U.S. and the Kaskaskia Indians (1803)

There are many reasons why we might should look to someone other than Thomas Jefferson for the meaning of the first amendment’s religion clauses, not the least of which is that he was not present at the constitutional convention which forged them (he was in France).  Add to that the fact that he poorly represented the views of most founders/framers on this issue (e.g., Roger Sherman, John Adams, John Hancock, John Jay, Oliver Ellsworth, etc.) and that he used a phrase that everyone agreed with anyway (all opposed the establishment of a national religion/church).  Nevertheless, many today continue to uncritically follow Justice Hugo Black who decades ago defined the establishment clause of the constitution as erecting an impregnable wall between church and state aimed at secularizing the public square, stripping it entirely of all religious references, motives, or activities.  Black attributed his interpretation to Thomas Jefferson.  But even if we do look to Jefferson for the meaning of the clause, how can this strict separation interpretation be reconciled with Jefferson’s actions as president, when in 1803 he negotiated and signed a treaty with the Kaskaskia tribe of Native Americans containing this provision (details of full treaty here):

Article 3… And whereas, The greater part of the said tribe have been baptised and received into the Catholic church to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion, who will engage to perform for the said tribe the duties of his office and also to instruct as many of their children as possible in the rudiments of literature. And the United States will further give the sum of three hundred dollars to assist the said tribe in the erection of a church. The stipulations made in this and the preceding article, together with the sum of five hundred and eighty dollars, which is now paid or assured to be paid for the said tribe for the purpose of procuring some necessary articles, and to relieve them from debts which they have heretofore contracted, is considered as a full and ample compensation for the relinquishment made to the United States in the first article.

Would this provision past constitutional muster using a strict separation test (even the Lemon Test)?  Obviously not.  So historically, it seems that modern strict separationists appeal with confidence only to Jefferson, but even that appeal seems to be anachronistic since he approved this measure.

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