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Wednesday, June 29, 2005

An unlikely dialogue

It's not every day that law students upstage law professors online.  But a recent blog discussion is following exactly that pattern.  In one corner of the ring is George Washington Mason law professor Todd Zywicki.  In the other corner is mild-mannered (?) Yale law student Will Baude.  So far, the fight has been no contest, with every point going decisively in Will Baude's favor. 

It helps that Zywicki probably picked the wrong fight.  He criticized a New York Times editorial for the statement that "as with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right."  Zywicki wrote "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"

Zywicki's major problem, however, is the factual record.  As Baude and others rightly noted, the phrase "wall of separation between church and state" comes directly from the pen of Thomas Jefferson. 

Confronted with that fact, Zywicki tried to beat a hasty retreat, suggesting that his real argument was that a wall of separation was not "what the founders in general understood the Establishment Clause to mean."  And to Zywicki's credit, that point is almost certainly much more defensible.  However, it's not Zywicki's original assertion.  And Will Baude, like a shark after blood, pounced on the retreating Todd Zywicki, noting that -- whatever the merits of Zywicki's revised assertion --

That's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New York Times is right on the specific point.

Other commenters are intervening and suggesting alternate tacks, such as emphasis on the Times' questionable pluralization.  Those may prove enough to salvage a bit of respect for Zywicki.  But so far, he has been decisively outmatched in this argument by his law student foe.  (And Dan, Hillel, Dave -- remind me not to pick a fight with Will Baude!)

Posted by Kaimi Wenger on June 29, 2005 at 12:43 AM in Deliberation and voices | Permalink


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Do these comments, by Madison, count? Or do we actually need to employ the word "wall"? I'd suggest that "total separation" is just as good as "wall" in this case.

"[T]he number, the industry and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church and state." (1819)

"Strongly guarded...is the separation between religion and government in the Constitution of the United States. . . ." (early 1800s)

(It seems that Roger Williams used the "wall" word in this context around 150 years before Jefferson. Not sure that matters, though. Just thought it was interesting.)

Posted by: Hillel Levin | Jun 29, 2005 11:12:06 AM

OK Will, Since we've now taken semantics to a fever-pitch: Come up with another founder who said it. Otherwise, the NYT wrong factually and I fail to see how your criticism of the professor cuts "decisively in your favor".

Moreover, the clear implication of what they said was that somehow the founders put the "wall" in the Establishment Clause, isn't even being defended as correct by anyone.

If the professor committed the sin of imprecision, the NYT is doubly guilty.

Posted by: MJ | Jun 29, 2005 10:42:00 AM


To repeat. I do not argue that the Establishment Clause established a wall of separation. I merely argue that "the idea of a wall" belonged to at least one, and probably more than one, founder. I take it is not refuted or contested by anybody that Jefferson had the idea, so all that remains to be shown is that one other founder also had the idea.

To repeat, because it seems to be getting lost. I don't make any claims whatsoever about the meaning, original or otherwise, of the Establishment Clause. Just about the source of the wall metaphor, which is what Zywicki's post (read it!) asked about.

Posted by: Will Baude | Jun 29, 2005 10:26:22 AM


Misdescribing something, or at least giving a description that is arguable doesn't make what you described actually exist. Jefferson described the wall of separation. So? If I describe the connections of the internet as transmissions from angel to angel by way of fluttering wings, does that mean that's how the internet was devised and already pesently existed?

Posted by: MJ | Jun 29, 2005 10:08:27 AM

MJ: you just refuted yourself with your little analogy. I'm sure it wasn't intentional, but I can't resist pointing it out. If the relationship between Jefferson's ex post "wall of separation" statement and the establishment clause is the same as the relationship between an ex post "interconnected web of computer links" and the internet, i.e. already present in the existing entity, then the founders indeed must have come up with the wall of separation concept, because they placed it in the bill of rights so it could be there when Jefferson referred to it.

Posted by: Paul Gowder | Jun 29, 2005 9:45:39 AM

See Rehnquist's dissent in Wallace v. Jaffree, 472 US 38 (1985) for extensive treatment of this precise issue.

Posted by: Simon | Jun 29, 2005 9:21:51 AM


Here is what the NYT said:

"As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right."

To say that "the founders" came up with the idea on the basis that one of them said it in a personal letter well after the Bill of Rights was ratified with nary a mention of it in the Establishment Clause is the equivalent of saying that I came up with the idea for the internet because I wrote a letter to the Knights of Columbus in 1995 that "We must as a nation establish an interconnected web of computer links."

We already had an internet by then. I didn't come up with anything other than a description of something that already existed. I am responsible for the ideas behind the internet like TJ is responsible for the ideas that were ratified in the Establishment Clause. That was the professor's point.

Posted by: MJ | Jun 29, 2005 9:21:50 AM

" George Washington law professor Todd Zywicki."

George Mason, no?

Posted by: gr | Jun 29, 2005 8:51:55 AM


Perhaps you miss the scope of my claims. I do not claim that Jefferson's Wall "was a fundamental tenet of what the Establishment Clause meant at the time it was ratified," and neither did the snippet of the Times that Zywicki decided to take aim at. All that it claimed, and what Zywicki quoted and asked about in his post, was that the founders had come up with the idea of the wall. Indeed, some of the founders sure did.

Did the founders place such a wall into the First Amendment, and did the people ratify such a wall? I tend to think not, so on that score, you, Zywicki, and I all agree, but Zywicki was careless in his criticism.

Posted by: Will Baude | Jun 29, 2005 8:47:51 AM


Jefferson was Secretary of State in 1791, not U.S. Minister to France.

Posted by: MJ | Jun 29, 2005 8:34:51 AM

I think the proclamations of victory for Mr. Baude are ridiculous.

The bill of rights was ratified in 1791. The first metion of the "wall of separation" that I am aware of came from TJ's letter to the Danbury Baptists in 1802 almost 11 years after.

How can it be argued then that it was the founders "who 'came up with the idea of a clear wall between church and state"? It seems an incredible stretch to take a statement out of a personal letter of one of the founders, who was serving as U.S. Minister to France at the time of ratification, incidently - more than a decade after ratification, and say that it was a fundamental tenet of what the Establishment Clause meant at the time it was ratified. That's Zywicki's point, and it is far from refuted by Baude.

Show me another founder who actually worked on the bill of rights that used language that is comparable to "there must be a permanent barrier between religion and government" and there might me some validity to the claims that the founders came up with "the wall
analogy". But saying that TJ's letter to the Danbury Baptists Association a decade later proves this, is sophistry.

Posted by: MJ | Jun 29, 2005 8:24:15 AM

Indeed, it is ambiguous whether or not the founders collectively meant to enact Jefferson's "wall of separation" into the religion clauses of the first amendment, let alone whether the people meant to ratify it. But it is *not* ambiguous where the idea came from. (N.B., people were flying kites in electrical storms before Ben Franklin tried it. I think it originates in France.)

All that lives is the plural argument, and if anybody thinks there is a reasonable chance that Zywicki was making a textual argument against the NYT on the basis of the founder/founders distinction, I will be happy to hunt for a second founder who also thought about Jeff's Wall.

Anyway, the point is that-- whatever the original understanding of the establishment clause-- the wall metaphor was indeed around then.

Posted by: Will Baude | Jun 29, 2005 7:05:37 AM

So the views of Thomas Jefferson, who was in France during the ratification of the Bill of Rights, are the views of the founders? Moreover, as anyone who has studied the historical record will tell you, whether or not the founders (plural) supported a wall of separation is, at best, inderminate.

Of course, that's not to say that Zywicki didn't overstate the issue: he clearly engaged in lay-baiting, and for that, he deserves a fair amount of scorn.

Posted by: Mike | Jun 29, 2005 2:55:49 AM

The fact that *one* of the founders used the phrase in correspondence is not the same as "the founders came up with the idea." Or am I being too picky?

Would it be accurate for me to say that the founders came up with the idea of flying a kite in an electrical storm? Or that the founders came up with the idea of building Monticello?

Posted by: John Steele | Jun 29, 2005 2:10:35 AM

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