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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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    Remember that the Constitution limits the authority of the federal tyrant. It does not limit the authority of the church. The federal government is prohibited from establishing a church and from regulating the free exercise thereof. This is different creating a wall of seperation. The federal government is denied access to the church. The church has free access to the federal government. Jefferson (who was not at the Constitutional convention or at the adoption of the Bill of Rights) and the courts have gotten this wrong.

    Nevermind this huge gaffe. Anyone who takes a stance against masturbation deserves the maximum amount of mockery and ridicule that can be heaped upon them.

    But that is exactly the point she was making. Look at the context of the debate. Coons was arguing (like you) that creationism should not be taught in public schools. And he backed it up by saying that the Constitution established separation of church and state. O'Donnell asked him where the it says 'separation of church and state' in the constitution. He fumbled a quote saying that Government Shall Not Establish Religion. When in reality the First Amendment references CONGRESS making NO LAWS with respect to the establishment of religion. O'Donnell's point was that Coons' interpretation is very different than what is actually there.

    What I just wrote was a short summary of almost exactly what Professor Jacobson wrote, and you obviously did not read before responding.

    ‘In God We Trust’ on coinage is not unconstitutional. No one is forcing you to believe, even read it. They could also say, ‘In Al Gore We Trust’, but how stupid would that be… we know that he’s a fraud…. and no one can prove that God does not exist as a supreme force of creation over the universe.

    @Van: and where, I ask you, is that "principle" to be found in the Constitution, hmmm?

    If you guessed "nowhere," you'd be right. The Founders knew that legislators, like anyone else, would be human, and thus prone to make decisions and votes based on their faith and personal conscience (such as that may be in a politician.)

    NOWHERE do they state that an individual legislator's faith should not be used to formulate their decisions.

    The literal reading of the First Amendment is the correct one.

    The Founders, you see, resorted to plain language, in the (obviously forlorn) hope that later generations would be able to understand the words to mean the same things as they intended. The times when there are greater implications from the literal, exact words of the Constitution, they amplified and expanded upon their words in subsequent sections of text within the Constitution.

    Your comical notion seems to be that as a nation we were intended to freely interpret the laws set forth in the Constitution as required by the situation.

    This is not the case; the Constitution was intended to prevent the federal government entirely from doing certain kinds of things the Founders considered hallmarks of abusive government.

    Had there ever been an intent to manufacture a total separation of faith from every aspect of government, they would have set that forth in the text.

    In fact they did not do so.

    The fact that they did not do so proves, as supported quite extensively by their writings at the time, that such was not their intent.

    The Founders came here largely from England, a country which at that time had an official, legally-mandated religion to which all citizens were expected to adhere.

    The relevant portion of the First Amendment was intended to ensure that such could not happen in the United States, because the federal government would be expressly prohibited from doing so, and prohibited from interfering with the free exercise of religion.

    So, you know, try again.

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