January 14, 2009

Rhetoric, Law, and Religion: Jefferson's "Letter to the Danbury Baptists"

Ian C. Bartrum, Yale Law School & Vermont Law School, has published "Of Historiography and Constitutional Principle: Jefferson's Reply to the Danbury Baptists," in volume 51 of the Journal of Church & State. Here is the abstract.

This article examines the ways that the Supreme Court has used Thomas Jefferson's letter to the Danbury Baptists ("a wall of separation between church and state") as a rhetorical symbol. It finds the letter at the heart of the Court's debate over competing theories of religious neutrality. The article then explores the treatment the letter has received in several leading academic histories, and concludes that professional historians have largely tailored their arguments to match the Supreme Court's ideological divide. The article concludes that, because the goals of historical argument and legal argument are fundamentally different, this "incestuous" kind of relationship between historiography and constitutional principle is potentially destructive.

Download the paper from SSRN here.

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