Julie A. Oseid*
This article is the second in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. My focus is on the lessons modern legal writers can learn from the Presidents. As a bonus, the stories about these Presidents and their writing are captivating.
Metaphors are powerful. A metaphor has the potential for tremendous good, such as perfectly summarizing and simplifying a difficult concept. But any metaphor also has the potential for tremendous danger, such as oversimplifying or incorrectly summarizing a difficult concept. Some metaphors are so powerful that they remain the quintessential description of an abstract and complex ideal, despite attacks on their accuracy or helpfulness.
This article examines one such powerful metaphor: Thomas Jefferson's metaphor describing the First Amendment religion clause as "building a wall of separation between Church & State."1 Perhaps no metaphor about church-state relations has been more powerful, more controversial, or more lasting. Jefferson wrote the metaphor in a January 1, 1802 letter to the Danbury Baptist Association of Connecticut, in part to assure the Danbury Baptists that he agreed with them "that religion is a matter which lies solely between Man & his God."2 Jefferson also intended to use the letter to explain his refusal to follow the prior Presidential practice of declaring days of fasting and thanksgiving, but that section of the letter was deleted before it was sent to the Danbury Baptists.3
Scholars, judges, and lawyers will long debate the accuracy of the metaphor. Learned minds take opposing views on the issue of whether the "wall of separation" metaphor is accurate in almost any sense. Some contend there is no "wall" at all.4 Others dispute what the wall separates.5 I leave the debate about whether Jefferson's "wall of separation" metaphor is a brilliant, flawed, complex, or simplistic metaphor for the First Amendment religion clause to Constitutional scholars and historians.
Instead, this Article has other goals: to examine how Jefferson's understanding of metaphor differed from the modern understanding of the use of metaphor in a legal context, to study how Jefferson came to use the "wall of separation" metaphor, to consider how the metaphor developed into a doctrinal metaphor substituting for the language and meaning of the First Amendment religion clause, and to glean lessons for legal writers from Jefferson's "wall of separation" metaphor.
In Part I, I contend that Jefferson wrote the "wall of separation" metaphor in the way he was classically trained to use metaphor: as a stylistic device to clarify and illuminate a difficult abstract concept. This classical understanding of the use of metaphor is contrasted with current thought about the role of metaphor in the law. Jefferson would likely be surprised by the modern idea that a metaphor could become a substitute for a complex legal doctrinal concept.
Part II reviews how Jefferson used the "wall of separation" metaphor in the Danbury Baptist letter. This section describes the context and background of the Danbury letter, paying particular attention to Jefferson's writing practices while he was drafting the letter. Jefferson carefully considered his audience, asked for advice from two Cabinet members, and revised the letter before sending it to the Danbury Baptists. Further, Jefferson wrote the letter to express his opinion about at least one churchstate issue—whether Presidents should declare national days of thanksgiving.
Part III considers whether Jefferson's understanding of the First Amendment religion clause was encapsulated entirely in the "wall of separation" metaphor. My suggestion is that Jefferson's "wall of separation" metaphor was the beginning, but certainly not the end, of his position on the appropriate intersection between church and state. This part points to circumstances suggesting that Jefferson likely did not intend for the "wall of separation" metaphor to be his ultimate statement about church-state relations: Jefferson used the metaphor only one time; Jefferson wrote the metaphor in a letter; Jefferson was not the first to use the metaphor; and the metaphor gained stature long after Jefferson penned the words in 1802. This section concludes that the "wall of separation" metaphor started as a stylistic metaphor. Only much later, long after Jefferson wrote the Danbury Baptist letter, did the metaphor develop into a doctrinal metaphor representing the meaning of the First Amendment religion clause.
Part IV analyzes the lessons legal writers can learn from Jefferson's "wall of separation" metaphor. Jefferson's "wall of separation between Church & State" is so powerful that, at least in the minds of the American public and perhaps in the minds of most American lawyers, the language of the metaphor has replaced the language of the law.6 Further, the image created by the metaphor has defined our understanding about the relationship between religion and government in America.7 The metaphor has had such astonishing longevity because it meets all the requirements of an effective metaphor: it is simple, concrete, visual, creative, and concise. Further, Jefferson's care in writing the metaphor should inspire us to take care in crafting or borrowing metaphors for our own writing. Finally, consideration of the common attacks made on metaphors in the legal context, and made against the "wall of separation" metaphor specifically, will help us craft effective metaphors. We writers can learn one overarching lesson from Jefferson's "wall of separation" metaphor: metaphor is powerful. Metaphors should be used with caution. Still, metaphors are so effective that they should be used. We may never create a metaphor with as much power as the "wall of separation" metaphor, but Jefferson's use of the metaphor and his writing habits can inspire us to use effective metaphors in our writing.
I. Comparing Jefferson's Understanding of Metaphor to the Modern Understanding of Metaphor in the Law
A metaphor is defined as "the application of a word or phrase to an object or concept it does not literally denote, suggesting comparison to that object or concept."8 The Greek etymology of metaphor is "carrying over" or "to stand for."9 Metaphors permeate our language. Metaphors are not simply rhetorical devices but are fundamental to the way we think.10 George Lakoff and Mark Johnson note, "[W]e define our reality in terms of metaphors and then proceed to act on the basis of the metaphors."11 Our human language itself is a set of metaphors, and we understand with the help of that language.12 Cognitive theory describes metaphor as "a way of thinking and knowing, the method by which we structure and reason, and it is fundamental, not ornamental."13 Metaphor, as a critical way of thinking, is just as important to lawyers as it is to others. Legal metaphors are "indispensable pieces of the legal culture, not merely tolerated, but needed."14
To Jefferson, "a metaphor stood for something it did not state, carrying over the meaning of one word or phrase to the meaning of something else."15 The "wall of separation" metaphor follows the normal metaphoric comparison between something concrete and a more abstract idea.16 This section reviews Jefferson's classical education, his understanding of the use of metaphor, and how Jefferson's understanding of metaphor compares to our current understanding.
A. Jefferson's Classical Education Influenced His Understanding of Metaphor
Historians study the lives of American Presidents and search for important influences on each President. The inquiry often starts with the early life of the President, as scholars delve into family influences, religious training, and education or the lack of any of these. The search continues as scholars study the life of the President as he became an adolescent and young man.
Thomas Jefferson was primarily influenced by his classical education. Charles A. Miller reviews how Jefferson's classical education informed Jefferson's understanding of metaphor.17 Jefferson began his study of Greek and Latin at the age of nine. He entered the College of William & Mary at the age of seventeen. He heard lectures on rhetoric from Dr. William Small, who brought the Scottish Enlightenment to Virginia. He then studied law under the apprenticeship of George Wythe, who was also a classical scholar.18 Jefferson read and admired Aristotle, Homer, Epicurus, and Tacitus.19 Charles A. Miller notes, "Jefferson had few peers either for depth or breadth in classical learning and none for the mark that an education in the classics left on his life."20 Further, Jefferson believed that an accomplished lawyer must read and study, among other subjects, mathematics, astronomy, philosophy, history, politics, ethics, physics, rhetoric, oration, and poetry.21
Among the Greek philosophers, Jefferson most admired Aristotle.22 Jefferson seemed to agree with Aristotle that metaphor did not have a place in philosophical argument, but it could be used in poetry and legal argument as an ornament and to persuade.23 In the Poetics, Aristotle said that "[metaphor] alone cannot be learned from others and its use is a sign of genius, for to use metaphors well is to see resemblances."24 Jefferson also likely read Quintilian, who wrote that metaphor was "by far the most beautiful of tropes."25 Miller points out that John Locke's views on metaphor had the greatest influence on Jefferson.26 In his Essay Concerning Human Understanding, Locke warned that metaphor and figures of speech could be dangerous and deceptive but also acknowledged that readers enjoy metaphor.27 Miller concludes:
Like Jefferson, Locke risked being inconsistent. But Locke wrote the creed that is also Jefferson's. A clear distinction exists between the requirements for seeking truth and the requirements for public persuasion and literary beauty. It is a distinction that goes back to Aristotle. Jefferson is in the tradition of both the ancient thinker and the modern.28
The 18th Century thinkers did not change Jefferson's understanding of the proper use of metaphor.29 Jefferson used his metaphors in the controlled, classical sense.
The classical works Jefferson read were replete with nautical metaphors, and he used nautical references more often than any other reference for his metaphors.30 Among nautical references, Jefferson used variations on the ship of state metaphor most frequently.31 That metaphor, like the "wall of separation" metaphor, did not originate with Jefferson, but was used in many classical works.32 Miller states that Jefferson's nautical metaphors were his most constrained metaphors, perhaps because they derived from these classical works.33 Miller examines several of Jefferson's non-nautical metaphors, although not the "wall of separation" metaphor, and concludes that these metaphors "are more striking, more extended . . . more passionately felt . . . [and] are at times philosophical."34
The main point to be learned from Jefferson's classical education is that he was fully aware of the dangers of metaphor because all the classicists he admired pointed out those dangers. He recognized that metaphor could stand in the way of truth.35 He thus used his metaphors for style and persuasion, but not as substitutes for complex abstract ideas.
B. Current Understanding of the Uses of Metaphor in the Law
Michael Smith points out that the role of metaphor in the law frequently has been a topic of legal scholarship in recent years, but "many of these works seem to talk past one another."36 Smith attributes this disconnect to a failure on the part of scholars to acknowledge or recognize that they are often talking about different types of metaphor.37 The problem also likely stems from our changing understanding about the appropriate use of metaphor. Miller points out, "Until a century or so ago . . . and certainly in Jefferson's mind, metaphor was strictly a rhetorical device, a 'mere' figure of speech."38 Smith suggests that currently there are four basic types of metaphor which correspond to the four basic components of any legal argument: (1) doctrinal metaphors (the legal principles governing an issue);39 (2) legal method metaphors (the tools of analysis applied to the governing principles);40 (3) stylistic metaphors (the writing style of an advocate who is presenting the legal argument);41 and (4) inherent metaphors (the inherent language itself ).42 Doctrinal and stylistic metaphors are relevant to a discussion of the "wall of separation" metaphor.
A doctrinal metaphor is a metaphor that expresses doctrinal law, the rules and principles governing a legal issue, in the form of a metaphor.43 Doctrinal metaphors are the most powerful but also the most dangerous.44 When a doctrinal metaphor is present, substantive legal rights are described not in literal terms, but in metaphoric terms.45 Metaphor is attractive and useful because it "give[s] names to nameless things."46 We use metaphors because of "the insufficiency of the other ways of understanding . . . ."47 Yet the danger of metaphor is that "[o]nce the particular reality is seen through the metaphor, nothing is quite the same . . . . [W]e have seen a particular and new reality . . . . We are in this sense changed."48 Benjamin Cardozo cautioned, in his often-quoted warning about doctrinal metaphors, "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."49 The potential problem with doctrinal metaphors is that they can reduce a complex concept, like church-state relations, to a metaphor, and metaphor is not capable of capturing all the nuances, complexities, and dimensions of the original concept.50 This is one common criticism about the "wall of separation" metaphor.51 The United States Supreme Court admitted, "Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law."52
The second relevant type of metaphor for analyzing the "wall of separation" metaphor is the stylistic metaphor. Smith explains that the doctrinal metaphor addresses what is said, but the stylistic metaphor relates to how it is said.53 Smith cautions that stylistic metaphors should not be dismissed as mere ornamentation without legitimate rhetorical power.54 Instead, stylistic metaphors serve several rhetorical functions and can be powerful.55 Smith emphasizes the following rhetorical functions of "stylistic metaphors":
The logos function of providing an analogy that helps communicate the
substance of the writer's point,
The ethos function of establishing the writer as a credible and intelligent source of information,
The pathos functions of evoking favorable emotions, and The rhetorical style function of drawing attention and emphasis to the writer's point.56
One critical final point about stylistic metaphors is that they can become doctrinal metaphors.57 The path of the "wall of separation" from a stylistic metaphor to a doctrinal metaphor will be explored in Part III.
Jefferson's classical education meant that he did not conceive that metaphor could be used to completely replace an abstract idea. He would likely recoil from that modern development because he was trained to be wary of metaphor standing in the place of truth.
II. Jefferson's Use of the "Wall of Separation" Metaphor
Ian Bartrum has pointed out that legal argument and historical argument are not always compatible: "Legal argument is essentially binary—there is always a winning and losing side—and the lawyer and judge thus seek simplicity and finality. Historical argument, on the other hand, aims largely to reveal greater nuance, complexity, and depth."58 This section looks at the historical facts surrounding Jefferson's "wall of separation" metaphor.
A. History before the Danbury Correspondence
The text of the First Amendment religion clause states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."59 But Jefferson was not a delegate to the Constitutional Convention; he was not present during the drafting or adoption of the First Amendment.60 Despite his physical absence from the Constitutional Convention because he was serving in Europe as the ambassador to France,61 Jefferson's views on Constitutional issues are considered important. Jefferson scholar David Mayer noted, "Jefferson . . . properly may be regarded as one of the founders because of the central role he played in the key issues that surfaced during the first four decades of government under the Constitution—issues many of which persist to this day."62 Scholars and historians have focused on Jefferson's writings to determine his understanding of church-state relations. The Danbury letter is valuable for its potential to shed light on Jefferson's views.
One important consideration in evaluating Jefferson's views is the historical context of the 1800 Presidential race, often called the "Revolution of 1800."63 Thomas Jefferson, Vice-President, defeated President John Adams in one of the most hotly contested races for the American Presidency.64 During the election, the Federalists charged that Jefferson "was an immoral, deist, Jacobin infidel, bent on severing government from its necessary religious roots and essential clerical alliances."65 The New England clergy, particularly the dominant Congregationalist ministers, led this attack.66 Jefferson's Republican party countered that Jefferson was a Christian, "albeit of an unusual sort," who believed in the separation of church and state to protect religious liberty.67 Jefferson survived as the winner of the 1800 election, but "came away with a bitter hatred for the established clergy of New England."68
* © Julie A. Oseid 2010. Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota. This is the traditional place for an author to thank everyone who has helped during the research and writing of the article. In a twist on tradition, I thank two people I have never met, and who do not even know I am writing about Thomas Jefferson's "wall of separation" metaphor. First, Daniel L. Dreisbach's work in this area has been absolutely invaluable to me. He has told the story about this metaphor with more depth and eloquence than any other scholar. Second, Charles A. Miller's thorough analysis of Jefferson's use of nautical metaphors helped me understand how Jefferson used metaphor when writing and speaking. Thank you, Daniel L. Dreisbach and Charles A. Miller, for helping me on the delightful path of discovery about Jefferson and his metaphors. I also thank two people I have met: Michael R. Smith and Chad Oldfather. Michael Smith's work on the role of metaphor in law and the different types of metaphor is inventive and thorough. Chad Oldfather's article about the five functions of metaphor in legal analysis and discourse was essential to my understanding of metaphor in legal writing. I also thank my creative, intelligent, and diligent research assistant Franz Vancura. He never once flinched when I sent him on a new research quest. Thanks to Dean Stephen Easton and Professor Robert Kahn for helpful suggestions during editing. Finally, thank you to all my excellent editors: Professors Melissa Weresh, Sara Gordon, Linda Berger, and Ian Gallacher, and the two anonymous reviewers.
1 See App. 6 (Ltr. from Thomas Jefferson, Pres. of the U.S., to the Danbury Baptist Assn. (Jan. 1, 1802)). Dreisbach's transcriptions of the Danbury Baptist correspondence are included in his book. Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State 142–48 (N.Y.U. Press 2002) [hereinafter Dreisbach, Thomas Jefferson and the Wall of Separation].
3 Jefferson revealed this intent in a letter he wrote to Attorney General Levi Lincoln while he was drafting the January 1, 1802 letter. See App. 4 (Ltr. from Thomas Jefferson, Pres. of the U.S., to Atty. Gen. Levi Lincoln (Jan. 1, 1802)).
4 See infra Part IV.C (discussing alternative metaphors).
5 Felix Frankfurter noted, "[A]greement, in the abstract, that the First Amendment was designed to erect a 'wall of separation between church and state,' does not preclude a clash of views as to what the wall separates." McCollum v. Board of Education, 333 U.S. 203, 213 (1948) (Frankfurter, J., concurring). Some argue that the "wall of separation" is a broad statement applying to all levels of government. Daniel L. Dreisbach & John D. Whaley, What the Wall Separates: A Debate on Thomas Jefferson's "Wall of Separation" Metaphor, 16 Const. Commentary 627, 628, 673–74 (1999) (John D. Whaley makes this argument). Others claim that the "wall of separation" separates only government from religion, but does not prohibit ecclesiastical authorities from engaging in all civil government formats. Id. at 628 (Daniel L. Dreisbach's view). Still others point out that "the wall of separation" is a prohibition only on actions by the federal, but not the state, government. Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 65–66 (Dreisbach notes that the First Amendment only governed relations between religion and the national government). John Witte, Jr., offers five early American understandings of the "wall of separation": protecting the church from the state; protecting the "liberty of conscience of the religious believer" from both church and state; protecting the state from the church; protecting individual state governments from federal government interference in local religious affairs; and protecting "society from unwelcome participation in and support for religion." John Witte, Jr., That Serpentine Wall of Separation, 101 Mich. L. Rev. 1869, 1889–91 (2003).
6 Philip Hamburger, Separation of Church and State 1 (Harv. U. Press 2002) ("In the minds of many [Americans], [Jefferson's words "separation between church and state"] have even displaced those of the U.S. Constitution, which, by contrast, seem neither so apt nor so clear.").
7 Dreisbach & Whaley, supra n. 5, at 628 ("[T]he fact remains, however, that both the courts and the public at large have embraced the 'wall' metaphor as the primary emblem of American church-state relations.").
8 Webster's American Dictionary 504 (2d College ed., Random House, Inc. 2000).
9 Charles A. Miller, Ship of State: The Nautical Metaphors of Thomas Jefferson 4 (U. Press of Am., Inc. 2003).
10 See Michael R. Smith, Levels of Metaphor in Persuasive Legal Writing, 58 Mercer L. Rev. 919, 921 (2007) [hereinafter Smith, Levels of Metaphor].
11 George Lakoff & Mark Johnson, MetaphorsWe Live By 158 (U. Chi. Press 1980).
12 James E. Murray, Understanding Law as Metaphor, 34 J. Leg. Educ. 714, 718 (1984) (citing Owen Barfield, Poetic Diction: A Study in Meaning 140–41 (McGraw-Hill Book Co. 1964)).
13 Linda L. Berger, What is the Sound of a Corporation Speaking? How the Cognitive Theory of Metaphor Can Help Lawyers Shape the Law, 2 J. ALWD 169, 170 (2004).
14 Thomas Ross, Metaphor and Paradox, 23 Ga. L. Rev. 1053, 1076–77 (1989).
15 Miller, supra n. 9, at 4.
16 Id.; see also Haig Bosmajian, Metaphor and Reason in Judicial Opinions 45–46 (S. Ill. U. Press 1992) (noting that we choose language from the concrete domain to discuss abstract concepts) (citing David Rumelhart, Some Problems with the Notion of Literal Meanings, in Metaphor and Thought 69 (Andrew Ortony ed., Cambridge U. Press 1979)).
17 Miller, supra n. 9, at 2–6.
18 Id. at 7; see also David N. Mayer, The Constitutional Thought of Thomas Jefferson 3–11 (U. Press of Va. 1994) (describing Jefferson's classical and legal educations and listing many of the texts Jefferson studied).
19 Miller, supra n. 9, at 7.
20 Id. (citations omitted).
21 Morris L. Cohen, Thomas Jefferson Recommends a Course of Law Study, 119 U. Pa. L. Rev. 823, 824 (1970) (summarizing the letter written by Jefferson at Monticello on August 30, 1814, and addressed to General John Minor and intended for John Minor's eldest son, also named John, who was 17 years old). Jefferson also made the following recommendations for dividing the day into study times: before 8 a.m.—physical studies, ethics, religion, and natural law; 8 a.m. to noon—law; noon to 1 p.m.—politics; afternoon—history; dark to bedtime—belles letters, criticism, rhetoric, and oratory. Id. at 824, 840–44 (schedule from printed copy based on Jefferson's handwritten manuscript). Jefferson often wrote to young men with advice
about reading and education. Id. at 826. In another letter to a young man he recommended a series of classical readings. Even with this rigorous schedule, Jefferson pointed out the value of physical activity: Give about two of them [hours] every day to exercise; for health must not be sacrificed to learning. A strong body makes the mind strong . . . Never think of taking a book with you [on walks]. The object of walking is to relax the mind. You should therefore not permit yourself even to think while you walk. But divert your attention by the objects surrounding you. Walking is the best possible exercise. Habituate yourself to walk very far. Id. at 826–27 (citing 8 The Papers of Thomas Jefferson 407 (J.P. Boyd ed., 1950)).
22 Miller, supra n. 9, at 18.
23 Id. at 19.
24 Aristotle, Poetics 59a4 (Allan H. Gilbert, Literary Criticism: Plato to Dryden 103 (Alfred Gudeman trans., Am. Bk. Co. 1940)).
25 Miller, supra n. 9, at 20 n. 21 (citing Institutio Oratio, VIII.6.4, VIII.6.44).
26 Id. at 23. Other scholars note that Locke also influenced Jefferson's views on religious toleration. Mayer, supra n. 18, at 158–59.
27 John Locke, An Essay Concerning Human Understanding, bk. III, ch. X (Peter H. Nidditch ed., Oxford U. Press 1975); Miller, supra n. 9, at 24.
28 Miller, supra n. 9, at 24.
29 Id. at 25–30. Miller also notes that Jefferson commonplaced (copied sections into a personal notebook) lines from John Milton's work. Miller surmises, "In contrast to most seventeenth and eighteenth century literature, which was so unlike his own practice, Jefferson must have been relieved to find the classically controlled nautical imagery of Milton, where he could see his own future style." Id. at 29. Jefferson kept three commonplace books: a literary commonplace book, a legal commonplace book, and an equity commonplace book. Mayer, supra n. 18, at 6.
30 Miller, supra n. 9, at 2.
31 Id. at 12.
32 Id. at 11–17.
33 Id. at 56.
34 Id. at 43.
35 Id. at 31.
36 Smith, Levels of Metaphor, supra n. 10, at 944.
38 Miller, supra n. 9, at 4.
39 Smith, Levels of Metaphor, supra n. 10, at 920–21.
40 Id. at 920, 928–29.
41 Id. at 920, 932.
42 Id. at 920, 942.
43 Id. at 921.
44 Id. at 923.
46 Aristotle, The Rhetoric of Aristotle 188 (Lane Cooper trans., Appleton-Century-Crofts, Inc. 1932).
47 Ross, supra n. 14, at 1073.
49 Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1926) (referring specifically to "the mists of metaphor" surrounding the relationships between parent and subsidiary corporations).
50 Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 209 (2d ed., Aspen Publishers 2008) [hereinafter Smith, Advanced Legal Writing].
51 See e.g. Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting) ("[The] 'wall' has proved all but useless as a guide to sound constitutional adjudication.").
52 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
53 Smith, Levels of Metaphor, supra n. 10, at 932.
56 Id. at 940 (citing Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 204–06 (Aspen L. & Bus. 2002); see also Michael H. Frost, With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor, 3 J. ALWD 5, 9 (2006) ("Classical rhetoricians understood and repeatedly stressed that all three modes of argument—logos, ethos, and pathos—were connected and inter-dependent.")
57 Smith, Levels of Metaphor, supra n. 10, at 941.
58 Ian Bartrum, Of Historiography and Constitutional Principle: Jefferson's Reply to the Danbury Baptists, J. Church & St. Adv. Access (May 28, 2009) (available at http://jcs.oxfordjournals.org/cgi/content/full/csp001).
59 U.S. Const. amend I.
60 See Mayer, supra n. 18, at ix; see also Reynolds v. United States, 98 U.S. 145, 163 (1879).
61 See Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution 125 (AEI Press 1997); see also Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography 297–390 (Oxford U. Press 1975) (describing Jefferson's years in France).
62 Mayer, supra n. 18, at ix–x. But see Mark J. Chadsey, Thomas Jefferson and the Establishment Clause, 40 Akron L. Rev. 623, 645–46 (2007) (arguing that Jefferson played "almost no role at all" in the adoption of the Establishment clause because his church and state views were not widely known outside of Virginia).
63 The Revolution of 1800: Democracy, Race & the New Republic xiii (James Horn, Jan Ellen Lewis & Peter S. Onuf eds., U. of Va. Press 2002).
64 John Ferling, Adams vs. Jefferson: The Tumultuous Election of 1800 xvii–xix (Oxford U. Press 2004).
65 Witte, supra n. 5, at 1893.