B. The Danbury Correspondence
Jefferson was inaugurated as the third American President on March 4, 1801.69 The Danbury Baptists sent a letter of congratulations to Jefferson, but the complete story of the Danbury correspondence involves six different letters.70 The Danbury Baptists wrote their letter in October 1801. The letter reached Jefferson's desk on December 30, 1801.71 Jefferson drafted a response letter. He sent the draft to his two New England cabinet members, Postmaster General Gideon Granger of Connecticut and Attorney General Levi Lincoln of Massachusetts.72 His letter to Granger no longer exists, but Granger's December 31, 1801 reply letter survives. Jefferson's January 1, 1802 letter to Lincoln asking for his advice on tone and content also survives; Lincoln responded the same day. By the end of the day on January 1, 1802, Jefferson revised the letter based on Lincoln's recommendations, signed the letter, and released it.73 Jefferson had looked for a chance to express his views on one important church-state issue: the practice of prior Presidents in declaring national days of thanksgiving and prayer.74 He thought his response to the Danbury Baptists would be his opportunity to express his view that such proclamations were inappropriate. A few highlights from each of the six letters, with close attention paid to Jefferson's writing habits, follow.
1. Address of the Danbury Baptist Association to Jefferson (October 1801) (Appendix 1)
The Danbury Baptists sent their letter to Jefferson to congratulate him on the Presidency, and to ask Jefferson how to better secure their religious liberty in Connecticut.75 The Connecticut Baptists admired and supported Jefferson because they saw him as a defender of religious liberty, and they were a minority sect in a state dominated by the Congregationalist establishment. 76 The Baptists were upset about the restrictions and taxes imposed by the Congregationalist establishment.77 Most importantly, the Baptists "believed that religious liberty was an inalienable right, and they were deeply offended that the religious privileges of dissenters in Connecticut were treated as favors that could be granted or denied by the political authorities."78
2. Jefferson to Danbury Baptist Association (preliminary draft) (Appendix 2)
Jefferson drafted a response to the Danbury Baptists. Jefferson's draft letter with his corrections was retained as part of his Presidential papers.79 In his draft response, Jefferson explained that he would not offer Thanksgiving proclamations or prayers.80 Jefferson also wrote:
Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof; thus building a wall of eternal separation between church and state.81
3. Postmaster General Gideon Granger to Jefferson (December 31, 1801) (Appendix 3)
Jefferson suspected that his draft letter might offend the New England clergy, so he asked Postmaster General Gideon Granger of Connecticut to review the draft.82 Granger wrote a brief note to Jefferson, saying that he could not "wish a Sentence changed."83 Granger acknowledged that Jefferson's letter might offend "the established Clergy of New England," but he thought Jefferson's sentiments should not be softened.84
4. Jefferson to Attorney General Levi Lincoln (January 1, 1802) (Appendix 4)
Granger's lack of editing may have disappointed Jefferson.85 Jefferson took time away from entertaining the public on New Year's Day to ask Levi Lincoln, his other New England cabinet member, to review his draft. He sent a copy of his draft letter with a cover letter explaining his objectives to Levi Lincoln.86
Jefferson used two metaphors in his letter to Lincoln. Jefferson told Lincoln that he had two main purposes in writing a response to the Danbury Baptists: (1) to use his letter to express his views about religious liberty with the hope that some of his views would become part of the American people's understanding of religious liberty, and (2) to explain why he would not make Presidential proclamations of fasting and thanksgiving.87 In explaining his first purpose, Jefferson used a metaphor comparing the transfer of his ideas about religious freedom to a seed being planted and germinating. Jefferson told Lincoln that he was averse to receiving letters like the one sent by the Danbury Baptists, but he tried to use his answers by "sowing useful truths & principles among the people, which might germinate and become rooted among their political tenets."88
Jefferson used a second metaphor in his letter to Lincoln, seeking Lincoln's specific comments about the tone he used in his Danbury letter. Jefferson compared his audience's ability to receive his message to people's receptivity to cooking flavors. Jefferson told Lincoln, "[Y]ou understand the temper of those in the North, and can weaken it therefore to their stomachs: it is at present seasoned to Southern taste only."89
5. Attorney General Levi Lincoln to Jefferson (January 1, 1802) (Appendix 5)
Unlike Granger, Lincoln offered several suggestions to Jefferson when he wrote back several hours after receiving Jefferson's request.90 Lincoln told Jefferson that he should make several revisions to the letter to avoid offending both the New England clergy and Jefferson's fellow Republicans.91 Lincoln noted, "The people of the five N England Governments (unless Rhode Island is an exception) have always been in the habit of observing fasts and thanksgivings in performance of proclamations from their respective Executives."92 Lincoln suggested alterations which would tone down Jefferson's sentence about executive proclamations regarding fasts and thanksgivings. Jefferson heeded Lincoln's advice, but instead of changing tone, he eliminated the entire sentence.
6. Jefferson to Danbury Baptist Association (January 1, 1802—final version) (Appendix 6)
Jefferson incorporated Lincoln's advice into his final draft. Most significantly, he eliminated any reference to his refusal to use the Presidential office to declare days of thanksgiving or prayer.93 Although it is sometimes difficult to tell why a writer makes editing changes, Jefferson was very clear about why he made this change. He wrote in the margin of his draft, "this paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings etc by their Executive is an antient [sic] habit, & is respected."94 Jefferson's original draft noted that the First Amendment religion clause is "thus building a wall of eternal separation between church and state."95 Jefferson eliminated the word "eternal" between the words "wall of" and "separation," so that the final metaphor reads that the First Amendment religion clause is "thus building a wall of separation between Church and State."96
III. Jefferson's "Wall of Separation" Metaphor Started as a Stylistic Metaphor but Developed into a Doctrinal Metaphor
The theory that the "wall of separation" metaphor developed from a stylistic metaphor to a doctrinal metaphor is supported by the earlier analysis of Jefferson's understanding of metaphor, but also by a consideration of Jefferson's intent when he wrote the metaphor. Scholars hotly debate exactly what Jefferson intended when he used the "wall of separation" metaphor. On one side of the debate are those claiming that Jefferson intended for the "wall of separation" metaphor to perfectly encapsulate his opinion about the First Amendment religion clause and, in turn, the true meaning of the First Amendment's prohibition against church and state mingling.97 Count several United States Supreme Court Justices and legal scholars on that side.98 On the other side of the debate are those claiming Jefferson wrote the Danbury letter primarily as a political statement to appease his New England supporters, but he never meant the "wall of separation" metaphor to convey either his ultimate understanding of the First Amendment religion clauses, or the true meaning of the First Amendment's prohibition against church and state mingling. Again, count several United States Supreme Court Justices and legal scholars as holding this opposing view.
Jefferson intended for his "wall of separation" metaphor to be an important stylistic metaphor, but once he released the metaphor in his Danbury letter the metaphor developed, over the last 200 years in the law, into a doctrinal metaphor.99 This does not mean that Jefferson originally used the metaphor in a doctrinal sense. Instead, circumstances surrounding the "wall of separation" metaphor suggest that Jefferson did not intend the metaphor to be his final and all-encompassing statement about the First Amendment religion clause: Jefferson used the metaphor once; he wrote it in a letter; he did not create the metaphor; and the metaphor gained prominence long after he wrote the Danbury letter.
A. Jefferson Used the "Wall of Separation" Metaphor Once
Jefferson has been described as an artist at metaphor.100 As far as we know, Jefferson used the "wall of separation" metaphor only once, in the Danbury letter.101 By contrast, he used his nautical metaphors numerous times.102 To be fair, Jefferson used a metaphor similar to the "wall of separation" metaphor, "fences," on one occasion. In a December 4, 1790 letter to Noah Webster, Jr., Jefferson wrote that there are certain rights, such as "freedom of religion," that people "need not" surrender to the government. He continued, "[T]here are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shewn a disposition to weaken and remove."103
B. Jefferson Wrote the Metaphor in a Letter
Jefferson's correspondence was an important part of his life, and he wrote letters almost every day, to both friends and strangers.104 It is estimated that he wrote 18,000 letters in his lifetime.105 Many of Jefferson's original manuscripts have survived, but Jefferson also made copies for his own files.106 Most of Jefferson's copies are in the Library of Congress.107 The Danbury Baptists' letter to Jefferson and his reply were published in New England newspapers by late January 1802, the same month he wrote the letter.108
Based on the seriousness Jefferson attached to his correspondence and the reality that much of that correspondence was published, Jefferson's Danbury letter was not inconsequential. Still, Jefferson had formal opportunities to express his views on the First Amendment. Jefferson served two terms as President, so his views could have been expressed in his State of the Union addresses or in his second inaugural.109 Jefferson did not use these formal occasions to re-emphasize his "wall of separation" metaphor.
C. Jefferson Was Not the First or Last to Use the "Wall of Separation" Metaphor
Although Jefferson authored the Danbury letter, he was neither the first nor the last to use the "wall of separation" metaphor. At least three people, Richard Hooker, Roger Williams, and James Burgh, used the "wall of separation" metaphor in a church-state context before Jefferson.110 Further, "[t]he image of a wall or similar barrier separating the realms of the church and civil government can be found in Western political and theological literature centuries before Jefferson penned the Danbury Baptist letter."111 It is difficult to say with certainty whether Jefferson knew about these earlier "wall of separation" metaphors, but scholars suggest that he likely read at least one of the earlier references.112
More importantly, Jefferson's metaphor languished in obscurity for years after he wrote the Danbury letter and it was published in 1802. The metaphor became a doctrinal metaphor only after several Supreme Court Justices used it in their opinions. After 1802, the Danbury letter was not published again until 1853 when it was included in a collection of Jefferson's writings.113 The "wall of separation" entered the legal vocabulary in 1879 when the Supreme Court included the entire second paragraph of the Danbury letter and wrote that the letter "may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured."114 The "wall of separation" metaphor then languished again for almost seventy years before Justice Hugo Black wrote, in Everson v. Board of Education, "In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' . . . That wall must be kept high and impregnable. We could not approve the slightest breach."115 Barbara A. Perry notes that "Justice Hugo L. Black, the foremost jurisprudential interpreter of the metaphor in the Supreme Court's modern era, is arguably responsible for the public's familiarity with the 'wall' doctrine."116 The Supreme Court cited the Danbury letter "frequently and favorably in the cases that followed Everson."117 The "wall" metaphor was used frequently during the Chief Justice Burger and Rehnquist eras.118
If someone creates an effective metaphor and releases it to the world, then others can use the metaphor. Michael Smith notes that if those others happen to be judges who use the metaphor in opinions to stand for a particular legal concept, then "it is also possible for the metaphor to become the rule governing the analysis of the issue—to wit, a doctrinal metaphor."119 Jefferson's metaphor started as a stylistic metaphor which later, with substantial help from various Supreme Court Justices, developed into a doctrinal metaphor.
IV. Lessons Legal Writers Can Learn from Jefferson's "Wall of Separation" Metaphor
This section analyzes why Jefferson's "wall of separation" metaphor has remained in our legal lexicon, and what we can learn from this metaphor. Part A considers the attributes of successful metaphor. Part B suggests that legal writers take time when selecting metaphors. Part C urges legal writers to consider the common attacks against metaphors when they are used in the legal context.
A. Use Decorative, Concrete, Analogic, Creative, and Concise Metaphors
As noted, metaphor is critical to all humans in general, and to lawyers in particular. Chad Oldfather identifies five functions of metaphor in legal analysis and discourse, which parallel the function of metaphor in all contexts.120 First, metaphors serve a decorative function which "is more important than its name implies" because metaphor enhances persuasiveness. 121 Second, metaphors make abstract concepts more concrete.122 Third, metaphors are a "concealed form of analogical reasoning . . . [because] they . . . compare[e] one concept with another."123 Fourth, metaphors have an "almost magical capacity to unleash creative thought."124 Oldfather explains that "metaphor provides a link between two often largely unrelated ideas," which leads to "a radically different view of the underlying subject."125 Fifth, metaphors are concise.126
The classical teachers who Jefferson studied offer insights about what qualities make a metaphor particularly effective. Aristotle said, "[M]etaphor[s] . . . must not be far-fetched; rather we must draw them from kindred and similar things; the kinship must be seen the moment the words are uttered."127 Quintilian offered, "A metaphor must not be too great for its subject, or, as is more frequently the case, too little."128
The "wall of separation" metaphor performs all five functions of a legal metaphor. The metaphor is decorative,129 concrete,130 analogic,131 creative,132 and concise.133 We can see the wall, and so could early Americans. No special cultural competence is required to visualize a wall.134 The concept of a wall separating things is familiar.135 Both those who first read the metaphor and those who read it today can see the relationship between a wall as a way to separate things and the First Amendment as a way to separate church and state. The metaphor's image of a wall is consistent with the theme of the First Amendment as a barrier between church and state mingling.136 Finally, the serious tone of the metaphor is appropriate for the gravity of the subject.137
In addition to all these strong qualities, Jefferson's "wall of separation" has one additional quality which we cannot replicate: Thomas Jefferson wrote it. Jefferson's fame no doubt played a role in the lasting quality of the metaphor.138 But other famous Americans, like George Washington and James Madison, also wrote metaphors about the role of religion and government that never took hold like Jefferson's metaphor.139More essentially, we cannot be Thomas Jefferson, so we will have to use metaphors that have all the other qualities of good metaphors.
69 Peterson, supra n. 61, at 653–54.
70 Daniel L. Dreisbach, in his elegant book, Thomas Jefferson and the Wall of Separation between Church and State, thoroughly considers the historical context behind the famous "wall of separation" metaphor. Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 128. Dreisbach explains, "This volume is a sourcebook for jurists and scholars who use Jefferson's metaphor . . . [t]his book is about a metaphor—a metaphor that has shaped American church-state law, politics, and discourse. Th[is] book is primarily descriptive, and it seeks to avoid the polemical and ideological cant that polarizes students of church and state." Id. at 6–7. The Appendices to this Article include the documents as transcribed by Dreisbach because his transcripts are the most accurate. Hamburger, supra n. 6, at 1 n. 1. The Dreisbach transcripts are included in both his book and a law review article. Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, app. 6 (correspondence with the Danbury Baptist Association, 1801–1802); Daniel L. Dreisbach, "Sowing Useful Truths and Principles": The Danbury Baptists, Thomas Jefferson, and the "Wall of Separation," 39 J. Church & St. 455, 460–61, 462–63, 465, 466–68 (1997) [hereinafter Dreisbach, Sowing Useful Truths and Principles].
71 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 31 (noting that the reasons behind this three-month delay are unknown).
72 See Hamburger, supra n. 6, at 159–60.
73 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 26.
74 App. 4.
75Witte, supra n. 5, at 1893.
76 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 25.
77 Witte, supra n. 5, at 1893. Dreisbach notes that the Danbury Baptists understood federalism to mean that the President could not interfere with any state laws, but they hoped Jefferson's views on religious liberty would spread to the states. Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 33.
78 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 33.
79 Many of the changes Jefferson made to the letter have been obvious since he made the changes, but some words from the draft were not visible because Jefferson had inked over those words when editing the letter. In 1998, the FBI developed a new technology, described as a digital airbrush, which revealed all the original words in the letter. Irvin Molotsky, One of Jefferson's Enigmas, So Finally the F.B.I Steps In, N.Y. Times B7 (May 30, 1998) (available at http://www.nytimes.com/1998/05/30/arts/ one-of-jefferson-s-enigmas-so-finally-the-fbi-steps-in.html?pagewanted=1). The FBI photographed the letter and scanned the image into a computer. Once the image was enlarged, an FBI photography expert could see the difference between the ink Jefferson used to draft the letter and the ink he used to edit the letter. The FBI expert then used a new computer tool to remove the overstriking. Id.
80 App. 2 (Ltr. from Thomas Jefferson, Pres. of the U.S., to Danbury Baptist Assn. (prelim. draft) (Jan. 1, 1802)).
82 Jefferson's request letter to Granger no longer exists, but it can be surmised that it was similar to the request letter Jefferson sent to Lincoln because Granger mentions the phrase "germinate among the People, and in time fix 'their political Tenets.' " A similar phrase was included in Jefferson's letter to Lincoln. See App. 3 & App. 4.
83 See App. 3 (Ltr. from Postmaster Gen. Gideon Granger to Thomas Jefferson, Pres. of the U.S.) (Dec. 31, 1801)).
85 Dreisbach suggests that Jefferson "perhaps desiring a more discerning view, solicited a second opinion, this one from Lincoln, of Massachusetts." Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 42.
86 Id. at 26.
87 App. 4; see alsoWitte, supra n. 5, at 1893-94.
88 See App. 4.
90 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 44.
91 App. 5 (Ltr. from Atty. Gen. Levi Lincoln, to Thomas Jefferson, Pres. of the U.S. (Jan. 1, 1802)).
92 Id. Lincoln's reference to Rhode Island referred to an October 1801 session when the Rhode Island legislature broke from tradition and rejected a resolution asking the Governor to proclaim a day of thanksgiving and prayer. This legislative decision generated controversy and disagreement from both Republicans and Federalists. Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 45–46.
93 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 38.
94 App. 6 (Ltr. from Thomas Jefferson, Pres. of the U.S., to Danbury Baptist Assn. (final version) (Jan. 1, 1802)).
95 App. 2.
96 App. 6. A few scholars have commented on Jefferson's elimination of the word "eternal" from the final draft. See Robert S. Alley, Public Education and the Public Good, 4 Wm. & Mary Bill Rights J. 277, 314 n. 232 (1995–1996) (suggesting that Jefferson struck the word "eternal" from the final draft because "separation of church and state was never simply a political solution for Jefferson, but a fundamental principle to which he was dedicated"); James Hutson, A 'Wall of Separation': FBI Helps Restore Jefferson's Obliterated Draft, 57 Lib. of Congress Info. Bull. 136, 139, 163 (June 1998) (Library of Congress Manuscript Division Chief Hutson suggests that Jefferson's striking out of both the word "eternal" as well as a draft reference to his Presidential office as "merely temporal" might show "the Republican faithful" that Jefferson would not infringe on their religious rights).
97 Some scholars have pointed out that Jefferson's intent is not particularly relevant in determining the true meaning of the First Amendment religion clause. Dreisbach notes, "Much of the modern controversy that surrounds Jefferson's 'wall,' by contrast, is less about the historical record than about the legal, political, and ideological uses of the metaphor in these times." Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 127. Still, Dreisbach notes, "Jefferson's views on church-state relations have been more closely scrutinized than those of any other American." Id. at 7; see also Mayer, supra n. 18.
98 Haig Bosmajian notes: [N]o other judicial metaphor [compared to "the wall of separation between church and state"] has been so directly defended and challenged by the [Supreme Court] justices, who have been conscious that they are relying on a metaphor that has had a great impact on court decisions related to church-state issues, especially the establishment clause of the First Amendment. Bosmajian, supra n. 16, at 73. Bosmajian also notes that scholars, theologians, and others have both attacked and defended the "wall of separation." Id. at 77.
99 Smith, Levels of Metaphor, supra n. 10, at 922.
100 Miller, supra n. 9, at 5 ("A metaphor depends on artistry, not science, and at metaphor Jefferson was an artist.").
101 Dreisbach, an expert on the Danbury letter, notes: There is no evidence from the written record that he ever again used the "wall" metaphor. Its absence is particularly noteworthy in documents such as his second inaugural address and letter to the Reverend Samuel Miller that, like the Danbury letter, purportedly addressed Jefferson's views on the propriety of the executive appointment of days for religious observance. In short, there is little evidence that Jefferson considered his "wall" the quintessential symbolic expression or theme of his church-state thought. Dreisbach, Sowing Useful Truths and Principles, supra n. 70, at 471.
102 Miller, supra n. 9, at app. 1 (Miller lists 95 nautical metaphors in Appendix 1).
103 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 87–88 (citing Ltr. from Thomas Jefferson, Pres. of the U.S., to Noah Webster, Jr. (Dec. 4, 1970) in The Papers of Thomas Jefferson (Julian P. Boyd et. al eds., 28 vols. to date) (Princeton U. Press, 1950)).
104 Cohen, supra n. 21, at 824. Cohen further notes that many of Jefferson's original manuscripts have survived, but Jefferson also made copies for his own files with either a copy press or the polygraph copying machine. Id. at 824–25. Jefferson called the polygraph copying machine the "finest invention of the present age." Id. at 825 n. 4 (citing The Writings of Thomas Jefferson vol. XI, 118 (A.A. Lipscomb & A.E. Bergh eds., 1903–1904)). "The polygraph copying machine was a device with one or more additional pens connected to a writer's pen," so copies were produced simultaneously while the writer wrote. Id. Cohen reports, "Jefferson himself made several improvements in his own version of the polygraph." Id.
105 Mayer, supra n. 18, at ix.
106 Cohen, supra n. 21, at 824.
108 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 24.
109 See Dreisbach, Sowing Useful Truths and Principles, supra n. 70, at 471 (pointing out the wall metaphor is missing from Jefferson's second inaugural even though he again alluded to the issue of Presidential proclamations of days of fasting and thanksgiving).
110 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 71.
111 Id. at 71–72.
112 Id. at 76 (Jefferson had a copy of Hooker's book in his personal library which was sold to the Library of Congress), 78 (some scholars suggest that Jefferson deliberately borrowed Williams's "wall of separation" metaphor, but others say there is no conclusive evidence that Jefferson knew about the metaphor), 79 ("A plausible source for Jefferson's 'wall' metaphor is the work of the dissenting Scottish schoolmaster James Burgh . . . . Jefferson read and admired the Scotsman's work and almost certainly encountered Burgh's use of the 'wall of separation' metaphor in his extensive readings.").
113 Id. at 96.
114 Reynolds. v. United States, 98 U.S. 145, 164 (1879).
115 Everson v. Board of Education, 330 U.S. 1, 16, 18 (1947).
116 Barbara A. Perry, Justice Hugo Black and the "Wall of Separation between Church and State," 31 J. Church & St. 55, 55 (1989).
117 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 102.
118 Id. at 103.
119 Smith, Levels of Metaphor, supra n. 10, at 941.
120 See Chad Oldfather, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, 27 Conn. L. Rev. 17 (1994).
121 Id. at 20.
122 Id. at 21.
123 Id. at 22.
124 Id. at 23 (citing Michael Boudin, Antitrust Doctrine and the Sway of Metaphor, 75 Geo. L. J. 395, 414, 414–21 (1986)).
126 Id. at 23–24.
127 Aristotle, The Rhetoric of Aristotle, supra n. 46, at 188.
128 Smith, Advanced Legal Writing, supra n. 50, at 240 (citing 3 Marius Fabius Quintilianus, Institutio Oratoria 309 (H.E. Butler trans., 1954)).
129 See supra part II.
130 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 111 ("Herein lies much of the appeal of Jefferson's remarkably simple, yet concrete metaphor.").
131 Oldfather, supra n. 120, at 22 ("[A] judge invoking the metaphor of the 'wall of separation' between church and state says that the constitutionally-prescribed relationship between religion and government is analogous to a boundary, and also says something about the nature of that boundary (i.e., that it is rigid, well-defined, etc.).").
132 Creative is used here in the sense Oldfather suggested—the metaphor helps the reader understand the First Amendment religion clause in a new way. Id. at 23.
133 Dreisbach, Thomas Jefferson and the Wall of Separation, supra n. 1, at 112 ("Jefferson's celebrated metaphor unquestionably 'condensed a wealth of concepts into a few words.'") (quoting Steven J. Safranek).
134 This is in contrast to several metaphors which are criticized because "the metaphor will trigger different associations for the reader and writer and thus they will no longer assign congruent meanings to the concept, nor will they be able to express fully their shared meaning through literal language." Oldfather, supra n. 120, at 25. Oldfather suggests that baseball metaphors may fall into this category. Id. at 30–51. Others suggest that "because baseball is central to our culture, it is a presumptively appropriate source of metaphorical references." Michael J. Yelnosky, If You Write It, (S)he will Come: Judicial Opinions, Metaphors, Baseball, and "The Sex Stuff," 28 Conn. L. Rev. 813, 817 (1996).
135 See Smith, Advanced Legal Writing, supra n. 50, at 239 (Smith warns writers to avoid arcane or esoteric metaphors).
136 I realize that I started this Article by saying I would not enter the debate about whether the "wall of separation" metaphor is a brilliant metaphor for the First Amendment religion clause. I recognize that I come dangerously close to that debate when I contend that the "wall of separation" metaphor is effective. I thus do not analyze the effectiveness of the analogy created between a wall and the First Amendment religion clause.
137 See Smith, Advanced Legal Writing, supra n. 50, at 242 (suggesting that a metaphor's tone should be consistent with the discussion, and a serious tone is appropriate for most legal matters).
138 See Hamburger, supra n. 6, at 1. Hamburger notes: Jefferson's words seem to have shaped the nation. Beginning with his draft of the Declaration of Independence, Jefferson's taut phrases have given concentrated and elevated expression to some of the nation's most profound ideals. Few of Jefferson's phrases appear to have had more significance for the law and life of the United States than those in which he expressed his hope for a separation of church and state. Id.
139 See infra Part IV.C.3.