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    What If Christine O’Donnell Were Right About The First Amendment?

    What If Christine O’Donnell Were Right About The First Amendment?

    The mainstream media and blogosphere have erupted because in a radio debate Christine O’Donnell appeared to dispute whether “separation of church and state” was required by the First Amendment.  (O’Donnell’s campaign walked back the position after the debate, saying O’Donnell merely meant that the words were not in the First Amendment.)

    The concept of separation of church and state is not, indeed, in the wording of the First Amendment.  Rather, as explained in the 1984 U.S. Supreme Court decision in Lynch v. Donelly:

    This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is

    to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.

    Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

    At the same time, however, the Court has recognized that

    total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.

    Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [p673]

    The Court has sometimes described the Religion Clauses as erecting a “wall” between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [n1] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

    The reference to Jefferson relates to this passage from a letter Jefferson wrote in 1802, as recited in the 1878 case Reynolds v. United States (emphasis mine):

    “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; that the legislative powers of the 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 separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

    So, O’Donnell unquestionably did not agree with the popular liberal conception that the First Amendment by its written terms requires a “separation of church and state,” but she was not wrong.

    And what an embarrassment to Widener Law School that as soon as O’Donnell questioned whether “separation of church and state” was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter. 

    And if O’Donnell’s imperfect — or perhaps nuanced? — understanding of the First Amendment were so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O’Donnell:

    “Government shall make no establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads “Congress shall make no law respecting an establishment of religion.”)

    Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment  which led to O’Donnell’s supposed major gaffe about the Establishment Clause, and how the press has taken O’Donnell’s comments out of context:

    O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.

    Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.

    A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.

    Update:  See also:

    Update 10-21-2010:  In an interview with ABC News, O’Donnell explained her position in terms evidencing a nuance and understanding far beyond those of the Widener Law School crowd:

    During Tuesday night’s debate with Democratic opponent Chris Coons, O’Donnell challenged Coons to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, laughter from the audience and yet another media firestorm.

    “It’s really funny the way that the media reports things,” she told ABC News. “After that debate my team and I we were literally high fiving each other thinking that we had exposed he doesn’t know the First Amendment, and then when we read the reports that said the opposite we were all like ‘what?'”

    O’Donnell explained her line of questioning to Coons was not because she didn’t know the First Amendment, but to the make the point the phrase “separation of church and state” does not appear anywhere in the Constitution. The Supreme Court has interpreted the First Amendment’s declaration that Congress “shall make no law respecting an establishment of religion” as a legal separation between government and faith.

    “I asked him where in the Constitution is the phrase ‘separation of church and state,'” O’Donnell recounted. “He said the First Amendment. I followed up with, ‘Can you name the five freedoms that are guaranteed to us that are protected by the First Amendment?’ And he could not.”

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    Comments


    SarahW, you are insisting on an anachronism. "Separation of church and state," even when Jefferson said it, did not mean that there were not state churches; it meant Congress could not make laws about establishment of religion—neither for, nor against. Why not against? Because there were, at both the time of the Constitution's writing and adoption, and at the time Jefferson wrote his letter (his letter being legally irrelevant), established churches in some states.

    Fight this as much as you want, you are the one who is being ahistorical. You're trying to foist onto the First Amendment's establishment clause a 20th century liberal's meaning that it simply did not have until about 1947—and even then, only to people who accept a plainly fallacious argument from a Supreme Court justice.

    Rob,
    You are correct, I got a little of topic starting with my first post, but I do see teaching creationism in schools is tantamount to Government promotion of religion. The local or state level already does decide on what to teach in schools; it just concerns me when people like O'Donnell espouse those types of beliefs, especially at the national level. What they say today might be a very different tune tomorrow if they happen to get into power. That goes for any candidate.

    serfdoof,

    And teaching evolution as "fact"… is not promotion of atheism? (particularly when there are actually MANY problems with evolution!)

    Moreover, the term "creationism" is a loaded term which… yes… DOES imply religion. That is why many prefer to use the term "intelligent design"… which doesn't deal in theology–just science… just the observable and provable scientific facts!

    Basically, if you were walking through a mountain, and you saw hyroglifics carved into the stone on a cave wall, you wouldn't think "wow, I wonder how long it took for those markings to evolve?". Instead, you'd recognize "intelligence" in the design. You wouldn't dare think that they happened by chance based on the elements like wind and sand and time, would you?

    In the same way, many honest science look at the fossil record, molecular structures, DNA, and behavior of life under observation in the lab… and they conclude (a) that they see signs of intelligent design, and (b) they see massive shortcomings and inconsistencies with the "goo-to-you" theory of evolution (i.e. macro evolution).

    Sure their is indisputable evidence of "changes" over time within "genus" and/or species, but even this has NEVER been absolutely proven to be upward evolution. Likewise, the vast majority (as in something like 100%) of mutations w/natural selection produced lateral or downward offspring (DEvolution!). A single example of non-controversial upward evolution has NOT EVER been observed in the lab. Ever! (I dare you to prove me wrong on this one!)

    So, again, given this brief summary, why not teach ALL viewpoints, and ALL theories (that are supported by a sizable number of scientists), and let the evidence speak for itself?

    How is it "scientific" to rule out possibilities like intelligent design based on pre-conceived philosophical biases?

    "Todd said…
    The US House, the DAY AFTER voting out the first Amendment as agreed upon in conference with the Senate did also vote to request a proclamation of thanksgiving [to Almighty God]"

    Todd, that info is absolutely devastating to the ACLU perspective. It indicates the very people who passed the first amendment did not intend to purge religion from government. Did you find that yourself or in someone else's research? Either way I would like to see more if you have links to point us in that direction. Thanks.


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