Well after the Civil War—and exactly four score and seven years after the adoption of the Bill of Rights—the Supreme Court heard its first case involving the First Amendment’s religion clauses. The case, Reynolds v. United States, involved a twice-married Mormon leader seeking a religious exemption from a federal anti-bigamy law under the Free Exercise Clause. The religion clauses do not mention exemptions, or, for that matter, the separation of church and state. Instead, they say “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Chief Justice Morison Waite was not sure what that meant, so he reached out to his friend George Bancroft, the most famous historian in America. Bancroft pointed to Jefferson, but did not explain why Jefferson held the key to the religion clauses. So the Chief Justice dug into Jefferson’s recently published collected works.
The index directed Waite to a then-obscure, but now-famous 1802 letter. Writing to a group of Baptists in Danbury, Connecticut, Jefferson declared that the religion clauses built “a wall of separation between church and state.”
But Waite still had a problem if he wanted to invoke this Jeffersonian quotation. During the entire time the religion clauses were being drafted, debated, and ratified, Jefferson was Minister to France. What could make Jefferson so important to the First Amendment that his wall-of-separation letter should be the official interpretation of the religion clauses?
Delving further into Jefferson’s works in hopes of finding a way to highlight Jefferson’s importance as a constitutional spokesman, Waite found a lengthy correspondence with Alexander Donald, a well-connected Virginian in the import-export business. Most of their letters dealt with Jefferson’s advice on the best of Bordeaux, especially the four wines still considered among the finest in the world: Châteaux Margaux, Haut-Brion, Latour, and Lafite. In one 1788 letter, for example, Jefferson alerted Donald to an upcoming shipment of Château Margaux 1784, which he hailed as the best vintage in nine years.
But a second 1788 letter to Donald is the subject of today’s story. It would end up building the wall of separation between church and state.
Commenting on the process of ratifying the Constitution, Jefferson wrote, “I wish with all my soul that the nine first Conventions may accept the new Constitution, because this will secure to us the good it contains.” Nevertheless, Jefferson hoped for a few amendments, writing, “I equally wish that the four latest conventions … may refuse to accede to it till a declaration of rights be annexed … which shall stipulate freedom of religion, freedom of the press,” and so on.
Alexander Donald passed this letter along to his friend Patrick Henry, and it was one of the many things mentioned during the debates at the Virginia ratifying convention. That is the only link Waite found between Jefferson and the adoption of the First Amendment.