On January 1, 1802, President Thomas Jefferson wrote a reply to the Danbury Baptist Association in Connecticut. They had been concerned lest our “toddler” government would seek some limitations on various subgroups of Christianity such as theirs. He famously replied:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship,...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 separation between Church and State.
That last phrase, not part of any official governmental communication, regulation, or law, was subsequently picked up and adopted as a foundational principal of freedom in the United States of America by Justice Hugo Black. His new principle, equated in his decision with those contained in the Bill of Rights, has been echoed down the decades in many other court cases. Yet the original statement made no such separation. Almost all the Framers of the Declaration of Independence, the Constitution and the Bill of Rights were devoutly practicing Christians, but did not foresee or wish for any obstruction by any level of government to an individual’s, or a group’s, through free association, actual establishment of their version of a relationship with a deity or their practice of worship thereof. But that freedom of religion has been transformed by Jefferson’s personal wish and Justice Black’s opinion into a prevention of religious acknowledgement or practice in any form by government. This evolved in our modern era to a government free of ethical or moral constraints whose administrative decisions are based more and more on utilitarian efficiency, not the natural rights and freedoms of individuals or our people as a whole. We see and seem to accept this erosion ever more presently. And we certainly accepted the absolute violation of our unalienable rights to engage in the free practice of our religions in free assembly during the recent administratively declared but unsubstantiated Covid emergency. But another phrase of Jefferson’s, profoundly more important and under even greater and more persistent attack, is buried within this same paragraph as a statement of fact, not a wish.
His phrase has been hidden, like in the ellipses above, by the focus on the smaller but important factor of religious freedom. That phrase, more all-encompassing in its simplicity and scope, is:
…that the legislative powers of government reach actions only and not opinions, …
Government cannot intervene in the affairs of a free people without the precedent of a law, in our case brought about by democratically elected representatives at some appropriate level of government. Those are government’s legislative powers, strictly delimited constitutionally in the case of the Federal government, with all other powers automatically deferred to and retained by the States.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The Federalist, No. 45
No branch of government has rights; only the people are endowed with the ultimate powers of rights by their innate nature.
The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing… George Washington
Only the people can grant temporary custody of some of their powers to some level of elected, not administrative, government. Administrative rules and regulations were not intended to have any power without specific authorization in legislation. That is why the recent reversal of the Chevron Doctrine is so critical to our newly reborn trend of Legal Formalism (otherwise known as Originalism and Textualism). This principle was clearly established previously by Jefferson in his commentary on interpreting the Constitution that he and his fellows had a hand in designing, writing, and promoting:
On every question of construction [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.
Thus, the powers of government are limited, temporary, and legislative in force as argued above by the Framers. But their reach, the scope of what those legislative powers can involve, are the actions of persons, not their opinions. While the rest of Jefferson’s letter refers to the specifically empowered freedom of action in establishing and exercising religious beliefs as stated in the Bill of Rights, his smaller phrase enshrines a much broader and more important right of a free people. True, the Bill of Rights fully recognized the unalienable right of all persons to free unencumbered speech, with the unspoken attendants of the right to be heard as noted later by Justice Thurgood Marshall and the responsibility to listen, even if in disagreement. Underneath those rights of action, made immune to the reach of government legislative action, is a critical right of condition. One may have any opinion, right or wrong, innate, or acquired based on factual, biased, propagandized, or other misinformation, or any other source or consideration a free person or people might choose. Government, either by legislation or other action, may not seek to reach and remove, obstruct, or change that opinion. Currently many sources, especially governmental, corporate, or accomplices to same, are attacking this fundamental Jeffersonian freedom of opinion through every venue possible. The only effective defense is the Triumvirate of every free person—suspicion, skepticism, and knowledge of and active reverence for the Constitution. We would all do well to read and appreciate Jefferson and his fellows more often and more thoroughly and use and trust the social media of civil personal discussion with our fellow citizens. That, more than any other, is Jefferson’s greatest gift to we, his beneficiaries.